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THE JEFF. DAVIS PIRACY CASES. 



TRIAL 



OF 



WILLIAM SMITH 



FOR 



PIRACY, 



AS ONE OF THK CREW OF THE CONFEDERATE PRIVATEER, 



THE JEFF. DAYIS. 



PHILADELPHIA: 
KING & BAIRD, PRINTERS, No. 607 SANSOM STREET, 

18 Gl. 



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/ 
THE JEFF DAVIS PIRACY CASES 



FULL REPORT 

OF THE 

' /6-33 

OP 

WILLIAM SMITH, 

FOR 

PIRACY, 

AS ONE OF THE CREW OF THE CONFEDERATE PRIVATEER, THE JEFF DAVIS. 

BEFORE JUDGES GRIER AND CADWALADEE, 

IN THE CIRCUIT COURT OF THE UNITED STATES, FOR THE EASTERN DISTRICT OF PENNSYLVANIA, 
HELD AT PHILADELPHIA, IN OCTOBER, 1861. 

BY D. F. MURPHY, 



OF THE PHILADELPHIA BAK. 



PHILADELPHIA : 
KING & BAIRD, PRINTERS, No. GOT SANSOM STREET. 

1861. 



E 



5^b 



CONTENTS- 



Indictment 9 

Jury 13 

Opening op Mr. Ashton 13 

Testimony of Benjamin Davis. 17 

" " John L. Priest H 

" " " " (recalled) 34 

" Charles W. Page 19 

(recalled) 38 

" " Jacob Garrick 25 

" John C. Fifield 29 

" " Thomas Ackland 34 

" " Thomas B. Patterson 37 

Opening of Mr. O'Xeill 39 

Testimony of Edward Rochford 43 

" " Daniel Mullinzs 51 

Argument op Mr. Earle 52 

" Harrison 55 

" " Wharton 71 

" Kelley 83 

Charge of Judge Grier 95 

" " " Cadwalader 97 

Verdict of the Jury...* 99 

Motion and Reasons for Xew Trial 99 

Trial of the Other Prisoners , 100 












"1 



TRIAL 



^ ^VILLI^M SMITH, 

FOB 

_Jft iJze f^ucLLit f^aiut af ike flLnlted <0^tateA, fat ike 
^aktetn. QLLhttiat af. ^e.nnAij^LiLaizicL. 

Reported, by D. F. MURPHY, of the Philadelphia Bar. 



Tuesday, October 22, 1861. 
In the Circuit Court of the TJiiited States, for the Eastern District of Pennsylvania, 

Judges Grier and Cadwalader. 



^aurLSicl ^a^ tlie flbiltacL ^ta±e.s.. 

J. HUBLEY ASIITON, ESQ., Assistant District Attor'y. 
GEORGE H. EARLE. ESQ., 
ttON. WILLIAM D. KELLEY. 



JOHN' P. O'NEILL, ESQ., 
N. HARRISON, ESQ., 
GEORGE M. WHARTON, ESQ. 



Mr. Ashton. I move your Honors for 
the arraignment of William Smith, who is 
charged in Bill of Indictment (Circuit 
Court, No. 88, October Sessions,) with the 
crime of piracy. 

Judge Grier. Is William Smith pre- 
sent? 

Mr. AsHTON. Yes, sir. 

Judge Grier. Very well. Let him be 
arraigned. 

The prisoner stepped forward to the Bar, 
and the Clerk of the Court read to him the 
Bill of Indictment, as follows : 

In the District Court of the United States 
in and for the Eastern District of Penn- 
sylvania, in the Third Circuit. Of 
August Sessions, in the year one thou- 
sand eight hundred and sixty-one. 
Eastern District of Pennsylvania, ss. 

The GRAND INQUEST of the United States 
of America inquiring within and for the 
Eastern District of Pennsylvania, in the 
Third Circuit, on their oaths and affirma- 
tions respectively, do present, that William 
Smith, late of the said district, mariner, on 
the sixth day of July, in the year of our 
Lord one thousand eight hundred and sixty- 
one, upon the high seas, out of the jurisdic- 
tion of any particular State within the 



admiralty and maritime jurisdiction of the 
said United States of America, and within 
the jurisdiction of this Court, did with force 
and arms, piratically, feloniously and vio- 
lently set upon, board, break and enter a 
certain vessel, to wit, a schooner called the 
Enchantress, the same being then and there 
owned in whole or in part by a citizen or 
citizens of the United States of America 
whose name or names are to the Inquest 
aforesaid unknown, and did then and there, 
in and on board of the said schooner called 
the Enchantress, in and upon one John 
Devereux, then and there being a mariner, 
and then and there being one of the ship's 
company of the said schooner called the 
Enchantress, and then and there master 
and commander thereof, and in and upon 
Charles W. Page; John Devereux, Junior; 
Joseph Taylor ; Antoine, a Portuguese ; 
Peter, a German ; and Jacob Garrick, each 
then and there being a mariner and one of 
the ship's company of the said schooner 
called the Enchantress, piratically, feloni- 
ously and violently make an assault, and 
them did then and there, in and on board 
of the said schooner called the Enchan- 
tress, upon the high seas aforesaid, out of 
the jurisdiction of any particular State, and 
within the jurisdiction of this Court, pirati- 



8 



cally, feloniously and violently put in botlily 
fear and dansrer of their lives, and the said 
schooner called the E)icha7Ure.sfi, and the 
tafkle. anparel and furniture thereof, of the 
value of three thousand dollars, together with 
seventy-tive sacks of corn, one hundred bar- 
rels of mackerel, one hundred and seventy 
grind stones, fifty boxes of candles, twenty- 
three thousand feet of white pine boards, 
two hundred covered hams, thirty tierces 
of lard, fifty barrels of clear pork, two hun- 
dred quarter boxes of soap, two hundred 
and forty half boxes of candles, and one 
package of glassware, of the value of ten 
thousand dollars, of the goods, chattels and 
personal property of certain persons whose 
names are to the Inquest aforesaid unknown, 
the said last mentioned goods, chattels and 
merchandize being then and there, in and 
on board of the said schooner called the 
Enchantress, and being then and there the 
lading thereof, and Ihe said schooner called 
the Enchantress, and the tackle, apparel 
and furniture thereof, and the said goods, 
chattels and personal property in and on 
board of said schooner called the Enchant- 
ress, then and there upon the high seas 
aforesaid, out of the jurisdiction of any par- 
ticular State and within the jurisdiction of 
this Court, being under the care and cus- 
tody, and in the possession of the said John 
Devereux ; Charles W. Page ; John Deve- 
veux, Junior; Antoine, a Portuguese; 
Peter, a German ; and Jacob Garrick ; and 
Joseph Taylor; the said William Smith 
from the care, custody and possession of 
the said John Dexereux ; Charles W. 
Page; John Devereux, Junior; Joseph 
1'aylor ; Antoine, a Portuguese ; Peter, a 
German ; and Jacob Garrick ; t-hen and 
there to wit, upon the high seas aforesaid, 
out of the jurisdiction of any particular 
State and within the jurisdiction of this 
Court, piratically, feloniously and by force 
and violence, and against the will of the 
mariners aforesaid, did steal, seize, rob, take 
and run away with ; against the form of the 
statute of the said United States of Ame- 
rica in such case made and provided, and 
against the peace and dignity of the United 
States. 

And the Inquest aforesaid inquiring as 
aforesaid, upon their respective oaths and 
affirmations aforesaid, do further present, 
that the said William Smith, on the sixth 
day of July, in the year of our Loi-d one 
thousand eight hundred and sixty one upon 
the high seas, out of the jurisdiction of any 
particular State, within the admiralty and 
maritime jurisdiction of the said United 
States of America and within the jurisdic- 
tion of this Court, did with force and arms, 
piratically, feloniously and violently set 
upon, board, break, and enter a certain 



Ameiican vessel, to wit : a schooner called 
the Enchantress, the same being then and 
there owned in part by Benjamin Davis, 
Junior; Richard Plummcr ; John T.Page; 
Ezekiel Evans ; J. B. Creasy ; J. W. 
Oeasy; and E. M. Read, then citizens of 
the said United States of America, and did 
then and there in and on board of the said 
schooner called the Enchantress, in and 
upon one John Devereux. then and there, 
being a mariner and one of the ship's com- 
pany of the said schooner called the En- 
chant) ess, and master and commander 
thereof, and in and upon divers other 
persons whose names are to the jurors 
aforesaid unknown, piratically, feloniously 
and violently make an assault, and them 
did then and there in and on board of the 
said schooner called the Enchantress upon 
the high seas aforesaid out of the jurisdic- 
tion of any particular State and within the 
jurisdiction of this Court, piratically, felo- 
niously and violently put in bodily fear and 
danger of their lives ; and the said schooner 
called the Enchantress, and the tackle, 
apparel and furniture thereof, of the 
value of three thousand dollars, of the 
goods, chattels and personal property of 
Benjamin Davis. Junior: Richard Plum- 
mer ; John T. Page ; Ezekiel Evans ; J. B. 
Creasy; J. W. Creasy; and E. M. Read, 
citizens of the United States of America, 
and seventy-five sacks of corn, one hundred 
barrels of mackerel, one hundred and 
seventy grind stones, fifty boxes of candles, 
twenty-three thousand feet of white pine 
boards, two hundred covered hams, thirty 
tierces of lard, fifty barrels of clear pork, 
two hundred quarter boxes of soap, and 
package of glassware, of the value of five 
thousand dollars, of the goods, chattels and 
personal property of William H. Greeley, 
the said last mentioned goods, chattels and 
merchandize being then and there on board 
of the said schooner called the Enchant- 
ress and being then and there the lading 
thereof, and the said schooner called tho 
Enchantress and the tackle, apparel, and 
furniture thereof, and the lading of the said 
schooner then and there upon the high seas 
aforesaid, out of the jurisdiction of any par- 
ticular State, and within the jurisdiction of 
this Court, being under the care and cus- 
tody, and in possession of the said John 
Devereux and the said divers other per- 
sons, mariners as aforesaid whose names 
are to the Inquest aforesaid unknown, the 
said William Smith from the care, custody, 
and possession of the said John Devereux 
and the said divers other persons mariners 
as aforesaid whose names are to the In- 
quest aforesaid unknown, then and there, 
upon the high seas aforesaid, out of the 
jurisdiction of any particular State, and 



9 



within the jurisdiction of this Court, pirati- 
cally, feloniously and by force and violence 
and against the will of the said John Deve- 
reux. and the said divers other persons, 
mariners as aforesaid whose names are 1o 
the Inquest aforesaid unknown, did steal, 
seize, rob, take, and run aw;iy with, against 
the form of the statute of the said United 
iStates of America, in such case made and 
jirovided, and against the peace and dignity 
of the United States. 

And the Inquest aforesaid inquiring 
aforesaid upon their respective oaths and 
affirmations aforesoid. do further present, 
that the said William Smilh, on the sixth 
day of July, in the year of our Lord one 
thousand eifiht hundred and sixty-oue. on 
the high seas, out of the jurisdiction of any 
particular State, within the admiralty and 
maritime jurisdiction of the said United 
States of America, and within the juris- 
diction of this Court, did with force and 
arms, piratically, feloniously, and violently 
set upon, board, break, and enter a certain 
schooner called the Endianfre.ssAh.e same 
being then and there owned l)y certain per- 
sons, citi7,eus of the United States of 
America, to wit: Benjamin Davis, Junior, 
Richard Plnmmer, John T. Page, Ezekiel 
Kvans. J. B. Creasy, J. W. Creasy, and E. 
M. Read, and did then and there, in and 
upon certain divers persons whose names 
are to the Inquest aforesaid unknown, the 
said last mentioned persons, each being 
then and there a mariner and of the ship's 
company of the said schooner called the 
Enchai'tress. piratically, feloniously, and 
violently made an assault, and them did 
then and there in and on board of the said 
schooner called \h<i Enchantress, upon the 
high seas aforesaid, without the jurisdiction 
of any particular State, and within the 
jurisdiction of this Court, piratically, 
feloniously and violently put in Ijodily fear 
and danger of their lives, and the said 
schooner called the Enc'iantress, and the 
tackle, apparel, and furniture thereof, of the 
value of three thousand dollars, of the 
goods, chattels, and personal property of 
the said Benjamin Davis, Junior, Rich.ird 
Plummer, John T. Page, Ezekiel Evans, 
J. B. Creasy, J. W. Creasy, and E. M. 
Read, and one hundred barrels of mackerel, 
one hundred and seventy grind stones, and 
twenty-three thousand feet of white pine 
boards, of the value of five thousand dollars, 
of the goods, chattels, and personal pro- 
perty of William II. Greeley, from the 
said divers persons, mariners as aforesaid, 
whose names are to the Inquest aforesaid 
unknown, in their presence and against 
their will, then and there upon the high seas 
aforesaid, out of the jurisdiction of any 
particular State, and within the jurisdiction 



1 of this Court, piratically, feloniously, and 
violently take, seize, rob, steal, and carry 
away ; against the form of the statute of 
the said United States of America in such 
case made and provided, and against the 

1 peace and dignity of the said United 

1 States. 

And the Inquest aforesaid, inquiring as 
aforesaid, upon their respective oaths and 
affirmations aforesaid, do further present, 

j that the said William Smith, on the sixth 
day of July, in the year of our Lord one 
thousaml eight hundred and sixty-one, 
upon the high seas, out of the jurisdiction 
of any particular State, within the admiralty 
and maritime jurisdiction of the said United 
States of America and within the juris- 

I diction of this Court, did, with force and 
arms, piratically, feloniously and violently 
set upon, board, break, and enter a certain 
vessel, to wit : a schooner called the En- 
chantress, and in and upon one John 
Devereux, then and there being in and on 
board of the said schooner called the 
Enchantress, and being a mariner and 
master and commander of the said schooner 
called the Encliavtress, and the said John 
Devereux, then and there being a citizen 
of the said United States of America, did 
then and there piratically, feloniously, and 
violently make an assault, and him the said 
John Devereux did then and there upon 
the hijih seas aforesaid and out of the juris- 
diction of any particular State, and within 
the jurisdiction of this Court, piratically, 
feloniously, and violently put in great 
bodily fear and danger of his life, and the 
said schooner called the Enchantress, and 
the tackle, apparel, and furniture thereof, 
of the value of three thousand dollars, and 
seventy-five sacks of corn, one hundred 
barrels of mackerel, one hundred and 
seventy grind stones, fifty boxes of candies, 
twenty-three thousand feet of white pine 
boards, two hundred covered hams, thirty 
tierce of lard, fifty barrels of clear pork, 
two hundred quarter boxes of soap, two 
hundred and forty half boxes of candles. 
and one package of glass ware, of the value 
of ten thousand dollars, the same being 
then and there of the lading of the said 
schooner called the Enchantress, of the 
goods, chattels, and personal property of 
the said John Devereux, in his presence 
and against his will did piratically, 
feloniously, and violently take, seize, rob, 
steal, and carry away ; against the form of 
the statute of the United States of America 
in such case made and provided, and 
against the peace and dignity of the said 
United States. 

And the Inquest aforesaid, inquiring as 
aforesaid, upon their oaths and affirmations 
aforesaid, do further present, that the said 

2 



10 



William Smith, on the sixth day of July, 
ill the year of our Lord one thousand eight 
hundred and sixty-one, upon the high seas, 
out of the jurisdiction of any particular 
State, within the admiralty and maritime 
jurisdiction of the United States of 
America, and within the jurisdiction of 
this Court, in and upon one John Devereux, 
then and there being a citizen of the said 
United States, and he, the said John 
Devereux, then and there being in and on 
board of a certain vessel of the United 
States of America, to wit, a schooner 
called the Enchantress, and the said 
schooner being then and there on the high 
seas aforesaid, did piratically, feloniously, 
and violently make an assault, and him, 
the said John Devereux did then and there 
upon the high seas aforesaid, out of the 
jurisdiction of any particular State, pirati- 
cally, feloniously, and violently put in 
bodily fear and danger of his life, and the 
said schooner called the Enchantress, and 
the tackle, apparel, and furniture thereof, 
of the value of three thousand dollars, and 
seventy-five sacks of corn, one hundred 
barrels of mackerel, one hundred and 
seventy grind stones, fifty boxes of candles, 
twenty-three thousand feet of white pine 
boards, two hundred covered hams, thirty 
tierces of lard, fifty barrels of clear pork, 
two hundred quarter boxes of soap, two 
hundred and forty half boxes of candles, 
and one package of glass ware, of the value 
often thousand dollars, of the goods, chat- 
tels and personal property of the said John 
Devereux, from the said John Devereux, 
and in his presence and against his will 
then and there, on the high seas aforesaid, 
and out of the jurisdiction of any particular 
State, and within the jurisdiction of this 
Court, did piraticallj', feloniously, and 
violently seize, rob. steal, take, and carry 
away ; against the form of the statute of the 
said United States in such case made and 
provided, and against the peace and dignity 
of the United States. 

And the Inquest aforesaid, inquiring as 
aforesaid, upon their respective oaths and 
affirmations aforesaid, do further present, 
that the said William Smith, on the sixth 
day of July, in the year of our Lord one 
thousand eight hundred and sixty-one, upon 
the high seas, out of the jurisdiction of any 
particular State, and within the admiralty 
and maritime jurisdiction of the said United 
States of America, and within the jurisdic- 
tion of this Court, did, with force and arms, 
piratically, feloniously, and violently set 
upon, board, break, and enter a certain ves- 
sel, being a schooner called the Enchan- 
tress, then being a vessel belonging to cer- 
tain persons to the said Inquest unknown, 
and then and there piratically, feloniously, 



and violently did assault certain mariners, 
whose names to the said Inquest are also 
yet unknown, in the same vessel and in the 
peace of the said United States then and 
there being; and then and there, upon the 
high seas aforesaid, out of the jurisdiction 
of any particular State, and within the 
jurisdiction of this Court, piratically, felo- 
niously, and violently the said mariners in 
and on board of said schooner called the 
Eii'hanfress, then and there being, did put 
in bodily fear and danger of their lives ; and 
the said schooner called the Enchantress 
and the apparel, tackle, and furniture of the 
same, of the value of three thousand dollars, 
together with seventy-five sacks of corn, 
one hundred barrels of mackerel, and fifty 
boxes of candles, of the value of five thous- 
and dollars then being in and on board the 
same vessel, and then and there of the lad- 
ing thereof, of the goods, chattels, and per- 
sonal property of certain persons to this 
Inquest unknown, and then and there upon 
the high seas aforesaid, out of the jurisdic- 
tion of any particular State, and within the 
jurisdiction of this Court, being under the 
care and custody and in the possession of 
the mariners aforesaid, he, the said Wil- 
liam Smith, from the care, custody, and 
possession of the mariners aforesaid, then 
and there, to wit, upon the high seas afore 
said, out of the jurisdiction of any particu- 
lar State, and within the jurisdiction, of this 
Court, piratically, feloniously, and by force 
and violence, and against the will of the 
mariners aforesaid, did steal, seize, rob, 
take and run away with ; against the form 
of the statute of the said United States of 
America in such case made and provided, 
and against the peace and dignity of the 
United States. 

And the Inquest aforesaid, inquiring as 
aforesaid, upon their respective oaths and 
affirmations aforesaid, do further present, 
that the Kastern District of Pennsylvania, 
in the Third Circuit, is the District and 
Circuit into which the said William Smith 
was first brought, and in which he was first 
apprehended for the said offences. 

GEO. A. COFFEY, 

Attorney for the U. S. for the Eastern District of Pcnna. 

[The indictment was regularly certified 
from the District to the Circuit Court.] 

At the conclusion of the reading of each 
count of the indictment, the prisoner 
pleaded " Nut Guilty." 

The Ci.ERK. — William Smith, how will 
you be tried ? 

The Prisoner. — By God and the coun- 
try. 

The Clehk. — God send you a good de- 
liverance. 



11 



The jurors' names were then drawn from 
the box, and finally a jury was obtained 
composed as follows : 

1. Horatio Jones, gentleman, of Reading, Berks Co. 

2. Lkwis B- Fhete, gentleman, Hatbcrough, Montgomery 

Co. 

3. William KiNSEY, gentleman, Bristol, Bucks Co. 

4. Alfred J. White, clerk, Philadelphia. 

5. JdiiN Franklin, machinist, Philadelphia. 

6. John R. Paul, yarnisher, Philadelphia. 

7. .John P. AfiLLEK. gentleman, Reading, Berks Co. 

8. John Logan, lime dealer, Philadelphia. 

9. Josei-h Stoney, gentleman, Conshohocken, Montgom- 

ery Co. 

10. Jonathan Chapman, engineer, Philadelphia. 

11. Samiel S. Tomkins, trunk maker. Philadelphia. 

12. Simon Mudge, collector, Philadelphia. 

The jurors having all been sworn or af- 
firmed, well and truly to try the case, and 
a true deliverance to make according to the 
evidence, 

Mr. AsHTON, opened the case for the 
United States. He said: 

May it please your Honors, Gentlemen of 
the Jury: — The gravity of this occasion, the 
the magnitude and interest of the case I am 
about to present for your consideration, im- 
press me with a deep sense of the responsi- 
bility which, ill the absence of the learned 
Attorney for the United States, has devolved 
upon me. 

1 had wished, gentlemen, tliat other lips 
than mine would have spoken the opening 
words of the important trials to which you 
have been summoned. I had hoped, may it 
please your Honors, that the United States 
might have been represented here to-day by 
liiin whose absence is a subject of sincere re- 
gret to us all, and that the cause of govern- 
ment and of law might have been presented 
and sustained before this high tribunal with 
the ability and power that he would have 
brought to the performance of his high duty. 
But it has been otherwise ordained. 
'• Our thoughts are ours, their ends uoue of our own." 

I dare not shrink, however much I might 
desire that this case, and the cases that are to 
follow it, should be committed to other and 
worthier guidance, — I dare not shrink, espe- 
cially at this hour in our country's history, 
from the task which has been set before me. 

The public interest wliich has been awakened 
by this trial leads to the belief that there is a 
deep public wrong to be avenged. The prison- 
er at the bar is no ordinary defendant. The 
trials of which this court room is usually the 
scene, have an interest merely for the accused, 
and those who are nearly bound to them, 
whether by the ties of blood or friendship. — 
The stories of crime or of misfortune which 
they disclose are forgotten almost as soon as 
tliey are told; and there is nothing left, save 
the lifeless record of the court, to perpetuate 
the memory of the fact that any human being 
has paid, with his life or with his liberty, the 
penaltj' of a violated law. The determination 
of the fate of tliis prisoner, however, involves 
the determination of questions infinitely more 
iinportaut than whether he shall die or live. 
The issues of the present session of this court 
are fraught with consequences which reach far 



into the future. The verdict which j'ou sh.all 
render will leave this room and find its record 
in the imperishable history of the land. 1 con- 
jure you, gentlemen, to meet the high require- 
ments of your position with the promptitude 
and fidelity which your solemn oaths demand, 
and which your country expects at your hands. 

Gentlemen of the jury, the prisoner at the 
bar, William Smith, is charged in this indict- 
ment with the offence — one of the very highest 
in the black catalogue of crime — known to the 
laws of nations and to the laws of the United 
States as that of piracy. The indictment, 
which is the chart we are to be guided by in 
this inquiry, contains six counts, as they are 
technically called, all of them setting forth 
substantially the same offence, but varying 
somewhat as to the manner and form in which 
the offence is charged. The single question 
which will ultimately be submitted to you for 
your determination under this indictment, is, 
whether, on the sixth day of July, in the year 
of our Lord one thousand eight Ijundred and 
sixty-one, the prisoner at the bar did, feloni- 
ously and piratically, set upon, board, bieak 
and enter a certain American schooner named 
the Enchanlrcts, and did, piratically' and feloni- 
ously assault her officers and mariners, and 
did, piratically and feloniously, and by force 
and violence, steal and carry away the said 
vessel and the cargo laden on board of her ? 
Such is the question of fact which you are to 
determine under the law and the evidence, and 
upon which depends the guilt or innocence of 
the prisoner at the bar. 

The testimony which the Government will 
present to you in support of the charge con- 
tained in the present indictment, is that of eye 
witnesses of the scene of violence and robbery 
enacted on the deck of the Enchantress. Their 
story is a simple one ; but that you may the 
better understand the circumstances under 
which the crime was committed, 1 will give 
you a brief narrative of the facts to which the 
witnesses will testify. 

On the first day of last July, the schooner 
Enchantress, under the command of Captain 
John Devekeux set sail from the harbor of 
lioston. She was an American vessel, sailing 
from the time of her birth under the flag of 
the United States, and loaded with a cargo of 
miscellaneous articles, consigned to parties in 
St. Jago de Cuba. Her owners are citizens of 
Massachusetts, resident in Newburyport, where 
the vessel was built, and was registered, I be- 
lieve, at the time of her last voyage from Bos- 
ton. The cargo shipped on board of her was 
owned by a number of Boston merchants, and 
among others, by Mr. William H. Gbkeley, 
whose name is mentioned in the indictment. 

The Enchantress left her moorings, as I have 
said, on the first of July, and put to sea; but 
upon the second a heavy gale of wind — pro- 
phetic, as it would seem, of the misfortune 
that was in store for her — drove her back to 
port, and it was not till the third of July that 
her voyage began. No voyage upon that sum- 
mer sea was more prosperous than hers, till 



IQ 



the afternoon of the sixth of July. About 
noon of that thiy, the hjokers-out from the 
Enchantress deck descried a sail to -ffiadward, 
which they made out in a short time to be that 
of a square-rigged vessel. She kegt bravely 
on her course, tlie ship, however, standing to- 
ward her so as to cross her bow. A few 
liours' sail brought the pursuing vessel within 
a mile of the schooner, when the , former 
hoisted the French flag. The latter immedi- 
ately ran up the Stars and Stripes to the main 
rigging. The stranger, still pursuing, Cain'e 
down to our schooner within less than a quar- 
ter of a mile, hauled down lier studding-sail 
and brought her to the wind. Soon tiie order 
came from the deck of the sttanger to heave 
to, to which Captain Devkbeux replied, that 
it was impossible to do so in tiie present posi- 
tion of the schooner, but that he would run 
his vessel to windward, and obey the order. 
The Enchantress then crossed her bow aiid 
heaved to. It was immediately seen that this 
imperious stranger was an armed brig, ; n ! 
that upun her deck, amidships, was a long gun 
surrounded with men, leveled so as to sweep 
the deck of the Enchantress. 

As the vessel approached and came rour'id 
by the port stern of the Enchantress to her 
Starboard side, it was observed that the men 
on board the privateer, for such they knew 
lier then to be, were in the act of preparing 
this giin for use — ramming home the cartridge. 
The vessels, in that position, were but a few 
hundred yards apart. The unsuspecting, fee- 
ble merchant craft lay under the frowning 
batteries of the dark pirate ship. Submission 
was the only alternative for the Ciptain of the 
Eachanircss A boat was then lowered from 
the privateer, and si.x men, armed to the teeth, 
leaped into her ; a few strokes of the oar 
brougiit them to the side of their captive, and 
as the officer in command of the boat passed 
up the side of the Enchantress, the French tiag 
•was taken from the mast-head and- the pirate 
flag of the so-called Confederate States was 
spread to the breeze. The officer in charge 
of the b'lat announced liimself to the mate of 
the Enchantress, who met him at the "angway, 
fts the First Lieutenant of the Confederate 
brig Jifcrson Davis, and made inquiry for the 
captain of the schooner. C^iptain Dy.vERKrx 
was standing upon the quarter-deck; the 
J.ieutenant, approaching him, said: " Cap- 
tiin, 1 will thank you for your papers — you 
!)re a prize to the Confederate brig Jefferson 
J)aris; get ready to go on board of her." 
Captain Dlvkrei^x procured the papers from 
the cabin and handed them to the boarding 
otticer : the stores being inquired for, the 
mate of our schooner pointed them out to the 
Lieutenant, who took them from the vessel 
and placed them in his boat. The captain, his 
son and the mate were ordered then to remain 
behind, while the crew of the schooner were 
transferred to the privateer. The Lieutenant 
and two or three of his men remaining in 
charge of the schooner, the crew, together 
with the colored cook of the Enchantress, who 



afterwards became the hero of this affair, 
were next placed in the boat and taken to the 
Jeff. Davis. The boat soon returned, bringing 
with her this defendant and four others, who 
came on board of the Enchantress and took 
possession of her. The colored cook. J.acob 
GAKiiiriv returned with them, ami when the 
Lieutenant inquired why Garkick had been 
brought \ ack, the prisoner replied that the 
captain liad so directed, but that the man 
would bring a thousand dollars when he got 
him into Charleston. The vessel being now in 
the possession of her despoilers, the Lieuten- 
ant sngge-'ted to the prisoner, who acted as 
the prize-master, to make sail. Captain Feve- 
iiEU.x !ind the mate were thereupon ordered to 
leave the schooner, and, stepping into the boat, 
they went alongside of the privateer, i. 
, They foumi her heavily armed, and manned 
by more than a hundred men. Upon the deck 
were two l2-pounders, and two guns carrying 
balls of eighteen pounds, together with the 
long l8-ponnder amidships. Her cabin (as 
the mate of the Enchantress will describe it) 
was hung all over with muskets, cutlasses and 
boarding weapons. It was now past twiligiit. 
The sail of the pirate was first seen about six 
o'clock on that July evening ; it was past eight 
when the captain of the Enchantress stepped 
upon the deck of the Jeff. Davis. The captain 
and the crew of our schooner are in the 
clutches of their enemies. The End antress 
ami her cargo are in the possession of the 
pirates — this prisoner and his fellows. The 
scene now changes. The vessels are to pait 
company ; the one to proceed on her voyage 
of plunder, piracy and death, the other to 
seek a harbor in some Southern port. 

Aboard the captured ship there was a heart 
as brave as Ci«s\K's, one Jacob GAitPioK, a 
poor black man, who was to become, in the 
hamls of Providence, the instrument for the 
safe deliverance of this captured ship, and 
whose devotion to the right has brougiit tliis 
prisoner to the bar of his country for the 
punishment he deserves J cob Ga' r;ck will 
tell yyu the story of the voyage of the En- 
chantress after the tith of July. He is the 
solitary witness of what transpired on board 
the schooner after the -capture, and what lie 
saw he will tell you simply but truthfully. On 
the morning of the 2"Jd of July, the Encliav- 
tress made the light-house at Cape Hatteras : 
but about two o'clock in the afternoon of that 
day, the United States gun-boat Albatross 
came in sight. Gentlemen of the jury,~you 
can picture, better than I can describe it, the 
scene of consternation and dismay upon the 
deck of the Enchantress, created by the appear- 
ance of our national vessel. The men had 
agreed that if a United States war ship crossed 
their path they would personate the captain 
and crew of the schooner, if they found it im- 
possible to escape, and that in the event of 
capture, they would either burn or scuttle her. 

Gai!Rick, the cook, was ordered to go be- 
low, as the Albatross came down upon them, 
but he ran to the galley, prepared and ready 



13 



to frustrate the plans of the pirates when tlie 
moment should come for him to act. As the 
gun-boat approached, Garrick leaped from the 
ressel's side into the sea. exclaiming as he 
jumped, " She is a prize of the privateer Jeff. 
DuL'ls.. and they are taking us to Charleston." 

A boat was sent from the Albatross to his 
relief, and he was taken breathless and ex- 
hausted from the water. Tlie Enchantress was 
immediately boarded by officers of the AlLa^ 
tr:>ss, the prisoner and the rest of the pVize 
crew were soon sr.fely in irons, and the 
schooner, under tlie convoy of the man-of- 
war, on her way to Hampton Roads. The 
prisoners were thence brought to Philadel- 
phia, and held for trial in this Court. 

Such, gentlemen of the jury, is a concise 
nari-ative of the incidents of this vessel's cap- 
ture, and of her release, out of which the 
present prosecution has arisen The testi- 
mony upon which we ask you for the convic- 
tion of this defendant will be given to you 
from the lips of those who suffered from liis 
conduct, and who were the victims of his 
cupidity and crime 

Captain Dkvk.bkux, the cafitain of the En- 
chantress, is at prcf^ent absent with the schooner 
at sea. We have in attendance upon the trial, 
liowever, Mr P.\gk, who was the mate of the 
ship when she was taken, and.J.xcon Gakr CK, 
the brave colored man, to whom is due the 
credit of tlie rescue of this vessel, and whose 
bravery and !<elf-possession, in a very ciitical 
liour, liave placed it in the power of the offi- 
cers of the law to bring the prisoner before 
you and this Cwurt for trial. 

The sixth of July was a memorable day in 
tlie short and guilty life of tlie privateer J'ff. 
JJai-i^. On the morning of that day, previ- 
ously to the assiiult upon the Enclianrress, she 
had fallen in with the IMiiladelphia brig Joint 
Welsh. Short work had been made of her. 
A cannon ball was fired across her bow, which 
brought the vesi^el to; in a few minutes the 
crew and captain of the Welsh were prisoners 
on board of the privateer, and the stolen ship 
on her way to a Southern port under the 
ciiaige of a band of pirates, such as those 
who will be arraigned before you in the pro-, 
gress of the present trials. The captain and 
the mate of thcJohn Wehh wei'e the witnesses 
of the assault and capture of the Enchantress 
from the deck of tlie privateer. They will 
confirm in every particular the testimony of 
Mr. Page and Jacob Garrick. They will 
give you a detailed account of the armament 
of this ship, her strength and power as a ves- 
sel of war, fitted and equipped to roam the 
sea with the Hag of a pirate confederacy at 
her mast head. Tliey will tell you how im- 
possible it would have been for any of these 
tiny merchant crafts to attempt resistance to 
her demands. Immediate destruction of the 
vessels and the instant death of all on board 
would inevitably have followed the manifesta- 
tion of the slightest spirit of resistance on the 
part of Captain Di-.vereiix and liis crew. His 
only course was to submit — to abandon his 
vessel and the property on board to the pri- 



soner and his fellows, trusting that liis conn- 
try would, some day or other, avenge his 
wrongs and the wrongs of those committed to 
his charge. That day, gentlemen, has now 
come - One other matter of fact alone re- 
mains to he stated. Wlien Captain Devereux 
and the mate of the Enchantress crossed the 
railing of the JJarls, they found on board of 
iier, as I have appristd you, the officers of the 
brig Welsh, which had been taken on the 
morning of July the iith. The next day was 
the Sabbath — tlie 7th of July. The day was 
begun oil boaid the privateer by religious 
service, in the course of which a prayer was 
offei-ed that '-God Almiglity might bless Jef- 
TERSON Davis, and all others in authority, 
and th.ow confusion upon their enemies at tl.e 
North." The next business was to look out 
for sails. Jlen were sent aloft for tliat pur- 
pose, and it was not long before the schooner 
S. J.'WaruKj liove in sight above the horizon. 
The i-ails of the privateer were taken in, and 
she hiy like a decoy duck upon the surface of 
the ocean, knowing full well that the unwary 
stiaiiger, fancying that she was in distress, 
would come up within the range of her guns : 
and so it happened. The Waring was taken. 
by tlie pirate that Sunday morning, and the 
next day, the 8lh of July, a large ship of 
eight hundred tons, the Mary Goodell. crossed 
the tr;ick of the privateer. Twelve marines, 
armed to the teeth, were detailed to go on 
board, and c|uaiitities of water and stores 
were taken from her and transferred to the 
Uacis. This cruise of the privateer had been 
a successful and eventful one. Every capture 
had brought on board of the vessel numerous 
pi'isoners, who were becoming a source of 
anxiety and danger to the privateersmen. 
They desired, accordingly, and very naturally, 
to get rid of them. The Goodell presented the 
oppoi-tunity and the facility for their dis- 
charge ; so Captains Devkreux and Fifielp, 
of the E/iC' antress and the Welsh, with their 
respecti\e mates, Mr. Page and Mr. Ack- 
land, were ordered to go aboard the Goodell; 
and by that vessel they were taken to Port- 
land, Maine You have tiius. gentlemen of 
the jury, the story of their capture and cf 
their release. 

Permit me now, gentlemen of the jurj', and 
may it please your Honors, to close these 
opening remarks with a few words touching 
the legal nature of the crime for which the 
prisoner stands indicted. I need not say to 
you fhfit prosecutions for this offence are 
not often instituted. I do not know of any 
trial for piracy in this District, except, per- 
haps, prosecutions for slave-trading, which 
has been made piracy by statute, since the 
year 1 82 > — certainly none later than that is 
reported in the books. That was the case, 
sirs, of the United States rs. Kesslek, re- 
ported in 1 Baldwin, and tried before the late 
learned Judge Hopkinson. 

I may premise that piracies are of two 
kinds: — (1) Those that are such under the 
laws of nations; and (2) those that are such 
by the force of statutory enactments. Piracy, 



u 



under the first description of it, is defined to 
be robbery or a forcible depredation on the 
high f-eas, without hiwful authority, and done 
anivio furandi, and in the spirit and intention 
of universal hostility. It is an offence against 
the universal law of society — a pirate being 
deemed, in the public opinion of all times 
and countries, an enemy of the human race; 
and, as such, punishable by any nation into 
■whose jurisdiction he may be bi'ought. 

The common law of England — the country 
from whom we derive our legal usages and 
thoughts — adopted the definition of piracy 
under the laws of nations, and recognized 
and punished it as an offence, not against the 
municipal code, but as against that other 
great code of laws which regulates and de- 
fines the duties and obligations of independ- 
ent, sovereign communities in their external 
relations to one another. Before the statute 
of 28th Henry VIII., ch. 15, piracy was pun- 
ishable in England only in the Admiralty. 
That statute changed the jurisdiction, but 
not the nature of the offence So well defined 
is this ofl'ence under international law, that 
in the year 1819 an act of Congress was 
passed making the crime of piracy, "as de- 
fined by the laws of nations," a crime against 
the laws of the United States, and it was held 
by the Supreme Court that this act was a 
constitutional exercise of the power of Con- 
gress to define and punish that ciime. (U. 
S. vs. Smith, 5 Wheaton, 153.) But, gentle- 
men of the jury, the prisoner at the bar is 
not indicted under the laws of nations or 
under the act of IBlSt. 

The present indictment is in part under the 
Act of Congress of 1820, which makes robbery 
in or upon any ship, and in or upon any person 
or thing on boaj-d of any ship, piracy, and, as 
such, punishable by death. This leads nie^to 
a brief consideration of the various statutory 
enactments that exist upon this subject. The 
Constitution confers upon Congress the power 
to define and punish that offence. The first 
act passed in pursuance of this authority, 
was that of 1790, section 8, which was very 
unskillfully and obscurely drawn, and led to 
many questions of jurisdiction, which were 
determined finally by the Supreme Court of 
the United States. In conseijuence of some 
adjudications of that Court, the act of 18U> 
was passed, to which I have referred. It was 
intended to enlarge the jurisdiction of tnc 
Courts of the United States beyond the limits 
assigned to it by judicial constructions of 
the act of 17U0. But it lasted for one year 
only, and, in 1820, the act under which this 
indictment is partly drawn, was passed by 
Congress. Its terms are bioad, general and 
comprehensive, and the evidence in this case 
will show you, beyond doubt or question, that 
the defendant is guilty of the crime which it 
defines. 

The Act of Congress of 30th April, 1790, 
declares, " if anj' person or persons shall 
coinniit upon the high seas or in any river, 



haven, basin or bay, out of the jurisdiction 
of any particular State, murder or rohhery, 
or any other ofl'ence which if committed 
within the body of a county, would by the 
laws of the United States be punishable 
with death ; every such offender shall be 
deemed, taken and adjudged to be a pirate 
and felon, and being thereof convicted 
shall suffer death." 

The 9th Section of the same .\ct renders 
another offence, of a vei-y peculiar character, 
piracy; and as it will he important in the 
aspect which the present case may assume 
under the testimony for the prisoner, I will 
give you the very words of the Statute : 

"If any citizen shall commit any piracy 
or robbery aforesaid, (such as is mentioned 
in the 8th sec) or any act of hostility 
against the Waited States, or any citizen 
thereof upon the high seas, under color of 
any commission from any foreign prince or 
State, or on pretence of authority from 
any person, such offender shall, notwith- 
standing the pretence of any swh autho- 
rity, be deemed, adjudged and taken to be 
a pirate, felon and robber, and on being 
thereof convicted shall suffer death." 

Judge Washington has called attention to 
the fact, that this Section is copied liter- 
ally from the English Statute of Uth and 
12lh Will, 3, c. 7, the history of whicii is ex- 
plained by Hawkins. The British Act was 
aimed at commissions granted to crniaers liy 
James II , after iiis abdication of the throne. 
These commissions were regarded as conferr- 
ing a legal authority to cruise, so as to protect 
those wlio jicteil under them against a cnarge 
of piracy. The English Parliament said by this 
Statute that no authority conteried by the 
weak and wicked Stuart would protect those 
w 10 acted under it from the doom of pirates. 
The American Statue has a direct and immedi- 
ate application to those of our own citizens who 
roam and rob on the high seas undei- commis- 
sions granted by a rebel leader. They confer 
no authority and no protection. 

The Act, as I remarked, is not drawn with 
the clearness and precision that characterize 
our elder American Statutes. A primary ques- 
tion arose in Palmer's case (3 Wheaton, (JlO), 
respecting the extent of the operation of the 
Statute. The full and literal meaning of tlie 
words would seem to indicate that it applied 
to any person, whether a citizen of the United 
States or not, who may commit the crime of 
robbery, murder, or any of the otl'ences men- 
tioned in the Act, on board of any ship or 
vessel, whether owned in whole or in part by 
citizens of the United States, or belonging ex- 
clusively to the sutijects orcitiiens of a foreign 
State. In Palmer's c ^se, however, the Supreme 
Court decided. Chief Justice Marshall de- 
livering its opinion, that the crime of robbery 
committed by a person on the high seas — 
whether an American citizen or a foreiguer — 



15 



on board of any ship or vessel belonging ex- 
clusively to subjects of a foreign State, is not 
piracy within tlie true intent of the Act, of 
v?liich I am now speaking In otiier words, 
the act of piracy must be committed on hoard 
of an American vessel. \Vlietlier the defend- 
ant is a citizen or not, if the offence was com- 
mitted on board of a foreign ship he cannot 
be convicted under this Act of Congress. The 
case of Palmer was decided in the year 1818. 
The question, snon after the decision in this 
case had been rendered, came before Mr 
Justice Wasliington in this Circuit, upon the 
trial of Howard and otliers fir the ciime of 
confederating and combining with pirates 
That great and learned Judge, (whose eminent 
virtues and abilities are commemorated upon 
the modest tablet which is placed in yonder 
wall,) had occasion to employ the authority of 
I'almer's case, on that occasion, and he then 
said that robbery on the high seas committed 
on board of a foreign vessel, did not amount 
to piracy within the true intent and meaning 
of the 8th Section of the Act of 1790, and that 
it was not cognizable in the Circuit Court of 
the United States 

The next case, two years later, was that of 
the United States v. Klintock, reported in 6 
Wheaton (144.) The vessel in that case was 
owned without the United States The same 
question — whether the national character of 
the vessel wus the criterion of jurisdiction — 
came up for decision ; and the Court again 
held, (the great Chief Justice speaking for it 
in his opinion), that if the piracy be com- 
mitted on board of a foreign vessel by a citi- 
zen of the United States, or on board of a vessel 
belon,i:ing to the United States by a foreigner, 
the offender is to be considered in respect to 
this subject as belonging to the nation under 
whose flag he sails The substance of these 
adjudications, as it has been expressed by 
Jadge Hopkinsoi) in United States v. Kessler, 
is, that the national character of the offender 
io nothing; the jurisdiction is decided by the 
character of the vessel. 

Thus stood the decisions, when the Act of 
March ;^rd, 1819, Section 5, to which I have 
also referred, was passed by Congress. The 
object of its framers, doubtlessly, was, to 
avoid the effect of the decisions to which 1 
have just called your attention. The 5th 
Section of the .-^ct provided, " that if any 
person u-Ji'ilxoeuer, shall, on the high seas, 
commit the crime of piracy, as dffined by the 
law of ?hi!ions, such offender shall, upon con- 
viction thereof, be punished witli death," The 
law of nations upon the subject of piracy was 
thus incorporated into the laws of the United 
States. Whatever was piracy in the eye of 
the laws of nations became an offence against 
the municipal law of this country. The penal 
law of the Unitetl States was thus made to ex- 
tend beyond their own vessels, and to embrace 
acts of robbery committed on board of all 
vessels, whether owned by our own citizens or 
nut — whether sailing under the American flag 
or under a foreign ensign. One of the defini 



tions of piracy, as it is known to the laws of 
nations, I have already given to you. A very 
forciVile description of the offence I find, may 
it please your Honors, in a quaint speech of 
Sir David L>alrymple, in the case of Green, the 
notorious pirate, wlio was tried before the 
Scotch Court of Admiralty in the year 1705. 
The case is found in the fourteenth volume 
of the State Trials. 

"A pirate," says Sir David, "is in a 
perpetual war with every individual, and 
every State. Christian or infidel. Pirates 
properly have no country, but hy the na- 
ture of their guilt, separate themselves, 
and renounce on this matter, the benefit 
of all lawful societies. They are worse 
than ravenous beasts, in as far as their 
fatal reason gives them a greater faculty 
and skill to do evil : And whereas such 
creatures follow the bent of there natures, 
and that promiscuously pirates extinguish 
I humanity in themselves, and prey upon 
men only, especially upon traders, who are 
the most innocent. The crime of piracy is 
complex and is made up of oppression, 
robbery and murder committed in places 
far remote and solitary," 

The 5th Section of the Act of 1819, adopt- 
ing the definition of piracy in the law of 
nations, expired, however, by its own limita- 
tion. Congress, probably, thought it unwise 
or impolitic to punish robbery committed oa 
hoard of foreign vessels. Other nations pro- 
vided punishment for the offence, when com- 
mitted upon ships sailing under their own flags, 
and why should the Congress of the United 
States undertake to do more than make laws 
for the punishment of the crime when com- 
mitted on board of American vessels ? This 
was the argument that probably induced 
Congress to suffer the 5th Section of the 
Act of 1820 to expire, and to enact in ita 
stead, the Statute of 15th May, 1820, § 3, 
which is in these words : 

"If any person shall, upon the high seas, 
or in any open roadstead or in any haven, 
b.isin or bay, or in any river where the sea 
ebbs and flows, commit the crime of rob- 
bery, in or npon any ship or vessel, or 
upon any of the ship's company of any 
ship or vessel, or the lading thereof, such 
person shall be adjudged to be a pirate ; 
and being thereof convicted before the 
Circuit Court of the United States for the 
District into which he shall be brought, or 
in which he shall be found, shall suffer 
death." (3 Stat, U, S., 600. Brightley's 
Digest, 208.) 

The effect of this enactment is, as it has 
been said, to revive the principle which Pal- 
mer's case and Klintock's case had estab- 
lished and reaflfirmed, namely, that the char- 
acter of the vessel, and not of the offender, is 
to determine the jurisdiction of the courts of 



16 



the United States. In every prosecution, 
therefore, under either the 8rh Section of the 
Act of 1700, or thp 3d Section of the Act of 
18"_'0, it must he shown that the vessel, on 
boJinl of which the rohhery was committed, 
was an American vessel ; and if that app^'ar. 
the national ciiaracter of the offender is of no 
importance — whether a citizen cr n fnreisrner 
he is subject to tlie laws of the United States. 
The two Acts of 1790 and 1820, are not 
essentially different, in so far a,s robbery on 
the liigh seas is concerned. The former uses 
the simple word " robbery.'" The other couples 
with it the wO' ds ^- in or upon ant/ ship or 
vesse!.'' The former makes " jnurdfr,'' as 
well as " robbery," piracy, if the crime is 
committed on the liigh seas. The other pro- 
vides .^^iniply and alone fur the punishment of 
" robbrrir on the sea. While they provide 
for the punishment of piracy, as defined hy 
the laws of nations, they also establish "a 
STATUTOHY PIR.ACY, in wliicli the fff'nder is 
not regarded or treated as an enemy of the 
■whole human race, and in wh'ch the oflFence 
need not, of necessity, be committed in the 
spirit and intention of universal hostility. 
The piracy in the present case is of. the 
species tiiat I describe. The very reason that 
writers upon international law treat of piracy, 
is that it is an offence against the un'ver-al 
law of human society, and not. especially, 
against the municipal law of any particular 
State or people. The pirate of the law of 
nations is an enemy of the human race; his 
kand is against every man, and every man's 
hatid is against him. He sails under no flag 
known among nations, and acknowledges alle- 
giance to no prince or State He plunders from 
love of gain. His pa.«sion is money, and he 
kills and robs that he may get it. All nations 
are alike his enemies. He recognizes no 
neutrals and no friends. The subjects and 
ships of every people are the victims of his 
wild and lawless pa'-sions. 

On the other hand, the peculiar piracy 
created by our statutes, may be of a very 
dift'erent character. A single act of robbery 
on the seas may stamp the offender as a 
pirate under the statutes of the United States. 
He may liave committed but the single rob 
bery ; the article stolen may be of almos« 
inappreciable value, and yet this court would 
have jurisdiction to try and punish h'm for 
the offence, as a pirate, in contemplation of 
the Acts of Congress. 

I would have you, gentlemen of the jury. 
bear in mind, throughout this case, the dis- 
tinction which I have endeavored to draw 
between the two species of piracy ; and to 
remember that we charge this prisoner with 
the guilt of that offence alone which is created 
by the Acts of Congress. 

The gist of the offence is robbery. The 
place must be either the high seas, or a river 
Or bay wliere the tide ebbs and flows. The 
robbery may be in or upon a vessel, or the 
lading or crew of the vessel. The taking 



must be, in legal phrase, animo furandi; it 
must he either with fui-ce and violence, or by 
putting the owners or fier.<ons in possession 
of the property in personal fear and liodily 
danger of their lives. The force or violence 
applied may be eitiier actual or constiuctive, 
as the law books say ; all th;it isnecessary in 
order to make tlie offence pii-acy, is that tiie 
power of the owner to retain the possession 
of the property was oveicome by the robber, 
either by actual violence physically applied, 
or by putting liim in such fear as to over- 
power )iis will It is only necessary to prove, 
in a pi-osecution for piracy, that the t.nking 
was attended with those circumstances of 
violence or terror which, in common expe- 
i-ience, aie likely to induce a man unwillingly 
to part with his money for the safety of his 
person, property or reputation. The present 
case will disclose to you the fact that the 
robbery of this vessel and of her cargo was 
accomplished both by putting those in posses- 
sion of her in fear, and by the application of 
actual violence 

Under the very shadow of an arined ship, 
manned by a hundred men, the guns levelled 
to sweep her deck, and ready, upon the in- 
stant, to send all on board into eternity if flie 
slightest evidence of resistance should bo 
manif'e-ted by them, the little Eitchantrens lay 
on that summer afternoon. It was while she 
lay in this position that the piracy was con- 
summated. Th s prisoner came on board, the 
captain of the pirate crew, and from the pos- 
session of the master and his marin'-s, stole 
the vessel and her cargo. Resistance on their 
part, as I have said, would have been mad- 
ness and death. They were not bound to 
resist force by force. Indeed, if Captain 
DEyEiJKix had ventured to prevent the 
boarding of his vessel, and death had been the 
result — the death of himself and of his crew 
— he would have been, from Bvavy moral point 
of view, a suicide and a murderer The alter- 
native of submission was adopted, very happily 
for him, and for the cause of law and justice. 

I have thus, gentlemen of the jury, reviewed 
the facts of the case about to be presented to 
yon — tiie principles of law that I deem appli- 
cable to it, and the testimony which I will 
offer on behalf of the Government, and upon 
which the counsel for the United States will 
ask you for the conviction of the prisoner. 

I need liardly remind you that the issue 
presented for your determination is a very 
solemn one, involving as it does the life or 
death of a fellow being. 

r.ut independently of this consideration, 
which affects merely the personal fate of the 
prisoner, the case which we present will pro- 
bably involve tiie practical determination by 
you of the great question which is now shak- 
ing the continent of America to its centre, 
and finding its everlasting solution on the 
battle-fields of Virginia and Missouri. 

I need scarcely say to you — a jury of Penn- 
sylvania men — that which it will be the duty 



17 



of the Court, in a subsequent stage of tlie 
cause, to instruct you, tliat tlie pretendfU 
authority, under which it may be chiinied the 
"orinie^of the prisoner were coniniitted, can- 
not avail him before this tribunal, either to 
justify or excuse them. 

I hoM before you the Statute Rook of the 
United States, and ( ut my tinger upon tlie 
law which he lias violated. Not a jot or tittle 
of that law lias passed away; and 1 ask you. 
if I bring luime to liini tlie ollence charged in 
this indictment, to say the truth before your 
country and your God — to render a verdict of 
guilty. We acknowledge but one Constitu- 
tion, whose law is su[)renie — supreme here as 
everywhere throuiLhout this land, which it has 
blessed and honored Toe obligations of alle- 
giance to the Government which that Consti- 
tution has established, and which it has im- 
posed upon all American citizens, cannot be 
desti'03'ed or annulled by the conduct or 
action of any State or any community of 
States. No other doctrine, 1 believe, can 
reach the ear of this Court, or enter the mind 
of M Pennsylvania jury. 

If, however, the evidence which the Govern- 
ment will bring before you shall be inadequate 
to supi'iort the charge which is preferred 
against the defendant, no one would more 
willingly ihan I listen to a venlict of ac- 
quittal ; and it will be your duty then to say 
that he is not guilty in the manner and form 
in which he stands indicted. 

Gentlemen of the Jury, my duty in opening 
to you the case of the Government of the 
Uniteil States has been now fulfilled. The 
cause is committed into your hands under the 
guidance and control of the learned Court, 
and all that I ask in closing these remarks is 
that full and impartial justice may be done 
between the Government and the prisoner at 
the bar. 

At the request of the counsel for the 
defence, the Court ordered that during the 
examination of anj- witness, the remaining- 
witnesses should not be present in the 
Court room. Accommodations were pro- 
vided for them in the Clerk's office. 

Benmamin Davis called and sworn, and 
examined by Mr. Ashton : 

Question. Whore do you reside ? 

Answer. In Newburyport. 

Q. Yon are part owner of the schooner 
Enchantress ? 

A. I am. 

Q. Where was she built? 

A. At Newburyport. 

Q. In what year ? 

A. In May, L858. 

Q. Where was she registered ? 

A. yhe was enrolled at Newbnrj'port. 

Q. Are all her owners citizens of the 
United States ? 

A. They are, and of Newburyport, as far 
as I know. 



Q. Who are the owners of the vessel ? 
A. It would be almost impossible for me 
to swear to it. because oftentimes bills of 
sale of that kind of property are held by- 
persons that we know not of. I own, my- 
self, five-sixteenths of the Enchantress. 

Q. Have you the evidences of your own- 
ership ? 
A. I have. 

Q. Have you got them here? 
A. I have. 

Q. Is Mr. Creasy one of the owners? 
A. I presume the owners are Messrs. 
Richard Plummer, John T. Page, Emnh 
M. Read. J. B. k J. W. Creasy, J. F. and 
Th<imas At wood, and myself. 

Q. Has she always sailed under the flag 
of the United States? 

A. She has. as far as I know. Her jia- 
pers show it so ainhow? 

Q. Where is she now enrolled or regis- 
tered ? 

A. Site is now registered in the port of 
New York under a temporary register. 

Q. Where was she registered on the sixth 
day of July, the time of her capture ? 

A. She has been under register from the 
port of New York, I think, for nearly two 
years past. 

Q. Who was her captain upon the sixth 
of J uly ? 

A. John Pevereux of Newburyport. 
Q. Who was her mate? 
A. Charles W. Page. 
Q Who were her sailors? 
.A. I do not know. 

Q. What was the value of the schooner? 
A. Her cost at the time she was built, 
three years since, was about ^OdOO. 

Q. What do you suppose her value was 
at the time of her capture ? 

A. She has been valued in this city since 
her return, at some five or six thousand 
dollars. 

Q. On what day did she last sail from 
Boston ? 

A. She sailed from Boston on the first 
day of July, as far as I know. I was not 
present atiier sailing; 1 presume sl.e sailed 
then, as the captain wrote me on that uay 
that he was about to do so. 

Q. 'I'he schooner Enchantress is an 
American vessel? 
A. Yes, sir. 
No cross-examinatior. 

JoHx L. Priest called and sworn, and 
examined by Mr. Asirrox : 

Q. Where do you reside. Mr. Priest? 

A. In Boston, Massachusetts. 

il. Do you know the schooner Enchan- 
tress ? 

A. I do. 

Q. How long have you known her? 



18 



A. Since about the 20th of June last, I 
think, when I chartered her for a voyaire 
from Boston to St. Jago de Cuba and 
back. 

Q. Then the connection which you had 
with her on the sixth of July was that of 
her charterer? 

A. I was her charterer and shipper of a 
portion of her cargo. 

Q. Do you know what the cargo of the 
Enchantress was upon the 6th of July ? 

A. I know some of the articles. I have 
a general idea of the cargo ; I saw part of 
it loaded. 

Q. Would you recognise the bills of la- 
ding for that cargo ' 

A. Yes, sir. 

Q. Do you know whether there were on 
board of her .seventy-five sacks of corn ? 

A. Yes, sir, I shipped them. 

Mr. Harrison (to Mr. Asiiton) I would 
rather you should ask the witness what he 
knows, and put the questions in a less sug- 
gestive form. 

Mr. AsHTox. It is impossible for the 
witness to remember the contents of all the 
bills of lading. 

Judge Cadwalader. Perhaps he may 

Mr. AsHTON, (to the witness.) Give us, 
if you can, the articles of the cargo ? 

A. I can speak definitely in regard to 
the shipment of seventy-five sacks of corn. 
1 shipped them myself and saw them put 
on board myself. 

Q. AVhat other things do you remember ? 

A. There were also about twenty thous- 
and feet of lumber put on the deck of the 
the vessel — white pine and oak luml)er in 
the form of boards. I saw it shipped my- 
self. 

Q. What other things do you recollect? 

A. There were also sundry l)arrels of 
mackerel, boxes of candles, and barrels of 
Lams. 

Q. Do you remember any other thing? 

A. My recollection is more positive in 
regard to those. 

Q. Was there any lard on board the 
vessel ? 

A. There was. 

t^. Any pork ? 

A. There was. 

Q. Was there any soap? 

A. There was, I know. T saw most of 
the bills of lading when they were made 
out and the freight list also. 

Q. Was there any glass ware on board 
the vessel ? 

A. 1 think there was. 

Q. Do you remember the names of the 
shippers of the cargo ? 

A. I do, of a good portion of the cargo. 
Messrs. (jlreeley tSc Sons, of Boston, shipped 
quite a quantity of mackerel, boxes of can- 



dles, and white pine boards. The firm of 
Jacobs & Son, of Boston, shipped a quan- 
tity of pork. The Boston Sandwich (ilass 
Company shipped a quantity of glass ware. 
Q. Do you remember the names of any 
of the other shippers ? 
A. No. sir. 

Q. Were all these persons whom you 
have mentioned, citizens of the United 
States? 

A. They were citizens of the United 
States, merchants doing business in Boston. 

Q. About what time was that cargo 
shipped on board ? 

A. I think the vessel commenced load- 
ing about the 2.5th of June. 

Q. AVhen was her cargo taken on board 
entirely ? 

A. 1 think it was finished on Saturday 
evening, the 30th of June. I thing she 
sailed from Boston on Monday, the 2nd of 
July. 

Q. And that cargo was on board of her 
so far as you know on the 6th of July ? 

A. I presume that it was. It was on 
board the second and must have been on 
board on the sixth. 

Mr. Wharton. You did not go with 
the vessel ? 

The Witness. I did not go with the ves- 
sel. I saw the vessel partly loaded, and 
was down on the wharf when she com- 
pleted her loading. 

Mr. AsHTON. Did you ever see the bills 
of lading for the articles on board the ves- 
sel shipped by Mr. Greeley? 

A. 1 have seen most of the bills of lading, 
having had the freight list made out from 
them. 

(4. Are these the bills of lading for Mr. 
Greeley's articles? [Exhibiting to the 
witness a number of bills of lading.] 

A. These are the bills of lading of the 
goods shipped by Mr. Greeley. 

Mr. Wharton. One moment about that. 
How do you know that, Mr. Priest ? 

A. I chartered the vessel and made out 
a freight list of the articles. 

Mr. Wharton. 1 want to know how you 
know these particular papers ? 

The Witness. I saw these papers origi- 
nally in Boston, before Captain Devereux 
signed them. 

Mr. AVharton. Before they were signed ? 

The Witness. I saw them before and 
after. I knew that such articles were to 
be shipped, and saw them. 

Mr. AsHTON. It is not important. 

Mr. Wharton. I do not know that it 
is important ; but the District Attorney 
seemed to suppose it was important to have 
these particular papers identified. I do 
not understand that what the witness says 
gives any validity to the papers. All that 



19 



he says is that he saw them on a prior oc- 
casion. 

The Witness. I presume these are the 
same. 

Judge Cadwalader. I do not see that 
it is very important on either side. 

Mr. Wharton. I do not know that it 
is. I presume the witness has not that 
particular knowledge which would justify 
hose particular papers jj-oing- in. 

Mr. AsHTON. Mr. Priest, the articles 
you have mentioned, so far as you know, 
■were on board the vessel on the 6th of 
July, 1861? 

The Witness. As far as I know, they 
•were. 

Q. They were on board of her when the 
vessel loft the port ? 

A. They were on board when she left 
Boston 

Q. Is Mr. Greeley a resident of Boston ? 

A. Yes, sir. 

Cross-examined by Mr. Wharton. 

Q. To whom was she consigned ? 

A. To the house of Masperan, Prenard, 
& Co., of St. Jago de Cuba. 

Q. For what purpose was the cargo sent 
there ? 

A. For the purpose of sale. 

Q. On your account ? 

A. Part of the goods were on my ac- 
count. Some of them were sent on freight 
by these various Boston shippers. 

Q. What was her tonnage ? 

A. I think her tonnage was about one 
hundred and eighty tons. 

Q. Where was she to go, after leaving 
St. Jago ? 

A. She was to procure freight, or to be 
loaded with sugar on my account, and re- 
turn to Boston or some northern port in 
the United States. 

Q. Have you the charter with you ? 

A. I gave the charter to Mr. Woodbury 
the U. S. Commissioner in Boston, and i 
understood him to say that he had sent it 
on with the other papers to Philadelphia. 

Mr. Ashton. To whom? 

The Witness. To Mr. Morton P. 
Henry. J asked Mr. Woodbury for it 
when he wished me to come on here as a 
•witness. He told me he did not find it 
among his papers, and he thought he had 
Bent it on. He did not think it material. 

Mr. Ashton. I have not seen it. 

Mr. Wharton. That has nothing to do 
■with the transaction, I suppose. I pre- 
sume it must have been some other affair 
of business. Was it ? 

The Witness. I think it had something 
to do with the release of the vessel, 

Mr. Ashton. The question of salvage, 
■was it not ? 

The Witness. I think so. 



Charles W. Page called and siuom, 
and examined by Mr. Ashton. 

Q. AVhere do you reside, Mr. Page ? 

A. In Newburyport. 

Q. Do you know the schooner Enchant- 
ress ? 

A. 1 do. 

Q. What was your connection with that 
schooner on the Gth of July, 1861 ? 

A. I was first officer other. 

Q. When did she sail from Boston on 
that voyage ? 

A. The first day of July. 

Q. Who was the captain of the schooner ? 

A. Captain John Devereux. 

Q. Who were the mariners on board the 
schooner ? 

A. Joseph Taylor; John Devereux ; An- 
toine, a Portuguese, I do not recollect his 
last name ; Peter, a German, his last name 
I do not recollect; and Jacob Garrick, a 
colored man, the cook. 

Q. This John Devereux, whom you men- 
tion now, was not the captain ? 

A. The captain's son. 

Q. Then the captain was named John 
Devereux, and one of the mariners was 
John Devereux, junior ? 

A. Yes, sir. 

Q. When was her cargo taken on board ? 

A. During the last week in June. 

Q. Of what did that cargo consist? 

A. A general cargo of provisions. 

Q. Did you superintend the taking in of 
the cargo ? 

A. I did. 

Q Can you enumerate some of the 
articles that were on board of the schooner, 
that were taken on board at the time you 
have mentioned ? 

A. Codfish, mackerel, ham, candles, 
crockery ware, hardware. 

Q. Do you remember any other articles ? 

A. 1 think there was some soap. 

Q. Were there any grindstones on 
board ? 

A. There were. 

Q. Were there any white pine boards ? 

A. Yes, sir. 

Q. Was there any lard ? 

A There was. 

Q. Was there any clear perk? 

A. There was pork on Ourd. 

Q. Was there any glass ware ? 

A. Yes, sir. 

Q. Was there any corn ? 

A. Yes. 

R. In what form was that corn ? How 
was it placed on board ? 

A. In bags, sacks. 

Q. Do you recollect the precise quan- 
tities of the articles that you have mea- 
tioiied? 

A. I do not. 



20 



Q. Do you know who were the owners 
or shippers of this cargo ? 

A. I do not. 

Q How was this cargfo laden? Was 
some of it on deck or all of it below ? 

A. All below but the lumber. Most of 
the lumber was on deck. 

Q. For what place did the Enchantress 
clear ? 

A. St. Jago, Cuba. 

Q. And on what day ? 

A. I cannot tell you the day she cleared. 
She sailed on the first of July. 

Q. What happened to the vessel on the 
second of July, if anything? 

A. There was a gale of wind on the 
morning of the second, and she put back. 

Q. Was any of her cargo unladen when 
she put back ? 

A. No, sir. 

Q. When did she sail again ? 

A. On the third. 

Q. What was the position of the vessel 
upon the 6th of July, at sea? What was 
her latitude and longitude? 

A. On the (>th day of July, at twelve 
o'clock, her latitude was thirty eight de- 
grees fifty-two minutes north, und her lon- 
gitude sixty-nine degrees fifteen minutes 
west. 

Q. IIow far from shore was she ? 

Judge Cadwalader, (to Mr. Ashton.) 
You can fix that by the chart if it becomes 
important. 

Mr, Ashtox, (to the witness.) Do you 
know the chart of the Enchantress? 

A. Yes, sir, 1 have seen it. 

Q. To whom did the chart of the En- 
chantress belong ? 

A. 1 do no know. 

Q. Is that thechart of the Enchantress? 
[Exhibiting it. J 

A. Yes. sir. 

Q. Now look at that chart and tell us 
how far this vessel was from the coast on 
the 6th of July, at twelve o'clock. 

Judge Cadwalader. There is no diffi- 
culty in supposing that the vessel was on 
the high seas. That is evident from what 
he has already sworn to. 

Judge Grier. We take it for granted 
that she had not run on shore. 

'J'he Witness, (having measured the dis- 
tance on the chart by the compass.) She 
was about two hundred and fifty miles from 
the shore. 

Mr. AsiiTON. On the high seas? 

A. Yes, sir. 

Q. AVhat were the incidents of that day. 
the 6th of July, on board the schooner En- 
chantress? Be good enough, if you please, 
to give deliberately and fully to the Court 
and Jury the occurrences on board the 
schooner on that day ? 



A. On that day things went on as usual 
on board up to about two o'clock in the 
afternoon, when we descried a sail to wind- 
ward. We could just make out that she 
was a square rigged vessel. We kept on 
our course. We gradually gained upon 
her, and we found that she was a srpiare 
rigged brig. She was standing so as to 
cross our bow. When within about a mile 
I should judge, she hoisted the French 
flag. We hoisted the Stars and Stripes. 
We still kept on our way thinking she 
might be a French vessel that wanted to 
get news from the United States. When 
within about half a mile, she altered her 
course and ran towards us. 'i'he vessel 
was hauled to the wind, her studding sails 
lowered, and we were ordered to heave 
to. 

Q. As a mariner, Mr. Page, state what 
was the object of this maneuver with the 
sails ? 

A. Hauling his vessel to the wind he 
had to lower his studding sails. To take 
them back would have retarded his pro- 
gress. 

C^. He ordered you to do what ? 

A. To heave to. Captain Devereux told 
him that he could not heave to in the posi- 
tion he was. He said, " I will cross your 
bow and run to windward, and heave to." 
We did so. went to windward of him, and 
hove to. He immediately lowered a boat. 
The boat came alongside of us with an offi- 
cer and some six men. 

Q. How far was the Enchantress from 
this vessel at that time? 

A. Perhaps some seven or eight times 
her length; I could not state the exact 
distance. It was within hailing distance. 
I stood in the gangway of the Enchantress 
The ofiicer, when he came over the gang, 
way, said to one of his own men, " Haul 
down that flag in the main rigging." 

il. That was your flag? 

A. Yes, sir. 

Q. Did the man obey the order? 

A. He did. 

il. The flag was removed ? 

A. Yes, sir. 

Q. Where did those men post themselves 
when they came on board the Enchant- 
ress? 

A. The men went all over the vessel, 
anywhere they chose. The officer went aft 
to the captain. 

t^. Did he ask you for the captain ? 

A. He asked me where the captain was ; 
I told him he was aft. 

Q. Did you hear what he said to the cap- 
tain ? 

A. I did. 

Mr. Wharton. Wo\dd it not be better 
to let him tell his whole story himself? 



21 



Oftentimes the incidents in regular order 
may present a different impression from the 
same incidents brought out by various 
questions not pursuing the exact order of 
events. 

Judge Grier. The best way is to let 
the witness tell his story, and then ask him 
as to anything he has omitted. 

Mr. AsHToN. 'I'hat is exactly what I 
wanted. (To the witness.) — Go on with 
your statement. 

The WiTNE.ss. The officer asked our 
captain where he was from, and where 
bound, and what was his cargo. The cap- 
tain told him. He then said, " I will thank 
you for your papers, captain ; you are a 
prize of the Confederate brig Jeff. Davis ; 
get ready to go on board of her." The 
officer asked if I was the mate of the ves- 
sel. I told him I was. Said he, "Show 
me where your stores are." I showed him. 
He tcok two of his men down into the cabin, 
and they took out whatever stores they 
wanted and put them into their boat. 'I'hey 
then took the Enchantress' crew (with the 
exception of Captain Devereux, his son, and 
myself) into the boat. 'i"he lieutenant and 
three men remained on board the schooner. 

Judge Cadwalader. When you say 
" lieutenant," you mean the boarding offi- 
cer ? 

The Witness. Yes, sir, the lieutenant 
of the Jeff. Davis, Three men rowed back 
to the privateer with all our men except 
Captain Devereux, his son, and myself. 
Some half-hour's time elapsed, and they 
came back to our vessel with the prize 
crew, five men. The lieutenant then gave 
Captain Devereux, his son, and myself 
orders to get ready to go in the boat. We 
put our things in the boat and got in our- 
selves, and they rowed us to the brig, and 
we went on board. 

Mr. AsHTON. Now, let me interrupt you 
at this point, and ask you if the defendant, 
the prisoner at the bar here, was one of 
those five men ? 

A. He was, sir. 

Judge Grier. One of the five who were 
left in the possession of your vessel? Is 
that what you mean ? 

A. Yes, sir ; they were left in possession 
of our vessel. 

Mr. AsHTON. Let me ask you another 
question before you go on. Was any mem- 
ber of the Enchantress' crew brought back 
in that boat ? 

A. Yes, sir, Jacob Garrick, the negro 
cook. He came back in the boat that 
brought the prize crew on board. The 
officer asked the prisoner at the bar what 
they brought him back for. He said the 
captain would not have hira on board the 
brig, and the prisoner at the bar said, " He 



will fetch fifteen hundred dollars when we 
get him into Charleston." 

Q. You went on board the brig ? 

A. Yes, sir. 

Q. In whose possession was the Enchan- 
ti-ess at that time ? 

A. The prize crew from the brig. 

Q. And there was no member of the 
Enchantress' crew, except Jacob Garrick 
on board of her then. 

A. None. 

Q. Was the cargo on board of the 
schooner, to which you have referred, in 
the possession of the defendant and the 
other four men ? 

A. It was. 

Q. Was any portion of that cargo re- 
moved by you or by Captain Devereux, or 
any of you ? 

A. There was not. 

Q. "What did you take with vou to the 
brig? 

A. We took our clothes. 

Q. The clothes you had on ? 

A. All our clothes that belonged to us. 

Q. Were the charts of the vessel and the 
instruments of navigation left on board? 

A. They would not let us take them. 

Q. Who would not let you take them ? 

A. The prize crew and the officer of the 
brig said we must leave everything on board 
in the schooner, the nautical instrument?, 
charts, &c. 

Q. When you went on board the brig 
Jeff. Davis, what was her condition in re- 
gard to arms ? 

A. She carried five guns, two on each 
side, and — 

Q. What was their calibre? 

A. I could not swear to their calibre, 
but I heard some of them say they were 
two eighteens, two twelve-pounlers, and 
one long eighteen amidships (a pivot gun). 

Q. What was the number of her crew? 

A. About one hundred men and officers. 

Q. Was there any cargo on board of her 
that you saw ? 

A. None that I saw. 

Q. You have seen men-of-war, Mr. Page ; 
was she manned and equipped as a vessel 
of war? 

A. She was, to the best of my judgment. 

Q. Now, to return : when the Enchan- 
tress hove to, how many hundred yards was 
this vessel from her ? 

A. A very short distance ; I cannot state 
exactly. 

(4. Could you. from the deck of the En- 
chantress, see the brig very plainly or not? 

A. We could. 

Q. Could you see the men on her? 

A. AVe saw perhaps some twelve or fif- 
teen when she first ordered us to heave 
to. 



22 



Q. You say this gun amidships was a 
pivot gun : in what position was it? 

A. It was pointed at us ; and as we went 
across his bow to go to windward to heave 
to, he swivelled his gun around — kept it to 
balance all the time. 

Q. Did you see the men about the gun ? 

A. I did. 

Q. What did they seem to be doing ? 

A. To be ramming home a cartridge. 

Q. Were there any arms on board the 
Enchantress? 

A. There was one musket. 

Q. Was that all ? 

A. That was all. 

Q. What time did you leave the Enchan- 
tress ? 

A. As near as I could judge, about half- 
past seven o'clock in the evening. 

Q. Was it dark? 

A. Just getting dark. 

Q. How long did it take you to get to 
the brig ? 

A. Some fifteen or twenty minutes. It 
was about eight o'clock when we got on 
board Ihe brig. 

Q. During the time you were on board 
the brig, were you down in her cabin ? 

A. 1 was. 

Q. What did you see there ? 

A. All sorts and descriptions of arms, 
all around the cabin, hung up in racks. 

Q. Small arms — pistols, and things of 
that sort ? 

A. Pistols, cutlasses, rifles. 

Q. You have spoken of the men on 
board her. Were there any marines on 
board her? 

A. There were what they called marines. 

Q. Armed with muskets, or not ? 

A. Sometimes they would be allowed to 
Lave muskets, and sometimes they would 
go without them, on board the vessel. 

Q. Where were those marines posted 
when you went on board the brig ? 

A. I could not state. It being dark, I 
did not recognize them. 

Q. You, and Captain Devereux, and his 
son, were on board the Jeff'. Davis. Who 
else? 

A. The remainder of the Enchantress' 
crew. 

Q. How long did you remain on board 
that brig ? 

A. I was on board her from the evening 
of the 6th of July until the evening of the 
9th. 

Q. As a prisoner ? 

A. As a prisoner. 

Q. How happened it that you were re- 
leased from this imprisonment ? 

A. 'I'hey captured a ship called the 
Mary Guodell on the afternoon of the 9th, 
and the captain of the brig told us we 



could get ready to go on board her as he 
would release us. 

Q. Did the captain give any reason for 
that ? 

A. He said that the ship was so large 
that they could not do anything with her; 
they could not get her into any southern 
port. 

Q. How large was she? 

A. A ship, I should judge, of between 
eight and nine hundred tons. They let all 
our crew go except two, whom they kept 
on board the privateer. 

Q. Were any other of the prisoners on 
board the brig released at the same time ? 

A, There were. 

Q. Who were they ? 

A. Captain Fifield of the brig John 
Welsh, Thomas Ackland his mate, and a 
boy that belongs in Philadelphia, who was 
with Captain Fifield ; I do not know his 
name. 

Q. When you went on board the brig 
did you find these persons there ? 

H. I did. 

Q. As prisoners, or as mariners of the 
brig ? 

A. As prisoners taken that morning. 

Q. During the three days you were on 
board the brig, had you an opportunity of 
knowing something about her conduct ? 

A. I had. 

Q. What did the Captain say, or any 
body on board the vessel connected with 
her say was the object of her voyage? 

Mr. Wharton. What is that ? 

Mr. AsHTON. I want to know whether 
anything was said by the officers or per- 
sons in control of the vessel as to the 
object of her voyage? 

Mr. Wharton. After this man Smith 
was on board ? 

Mr. AsHTON. Either before or after- 
wards. 

Mr. Wharton. W^e object to that. 

Mr. Ashton. If your Honors please, 
we have shown the relation between this 
prisoner and the persons on board the ves- 
sel in the nature of a conspiracy, and I take 
it that the words of one bind the other. 

Judge Grier. So far as they are part 
of the res gefitce, they would, but this is a 
mere mutter of confessions afterwards. 

Judge Cadwalader. This is outside of 
the rule. 

Judge Grier. They are found together 
and acting together, and so far the acts and 
conduct and words of each one are evi- 
dence as part of the rts gestce, and they 
are all bound by them ; but I do not see, 
that mere confessions afterwards could 
affect them. 

Judge Cadwalader. This was after the 
couuection was severed. 



23 



Judge Grier. The connection might not 
be severed; but the position, the locus, 
was severed. 

Mr. AsHTON. Would your Honors' 
ruling apply to the acts of this vessel ? 

Judge Cadwalader. All you can want 
to prove is the character of the vessel, and 
that you show by her conduct in a specific 
case. I rather think you have got out all 
you want in that respect. 

Judge Grier. When you prove that a 
man knocks you down, it is pretty good 
proof that he is not a peaceable man. 
Here you have proven that this brig 
captured a vessel. You do not want any- 
thing else. The conduct of the brig has 
shown what she is, better than any words 
anybody could use about it. If the other 
side can show a defence or justification of 
it, that is another matter ; but, you cannot 
make it any worse or better by any words 
they said afterwards. 

Mr. AsHTON (to the witness.) Well, 
Mr. Page, while the two vessels were in 
the position that you referred to, at the 
time you left the Enchantress, would it 
have been possible for the men on board 
the Enchantress to have resisted ? 

A. It would not. 

Q. Why not? 

A. We were laying right under the guns 
of the Jeff. Davis. They were pointed 
at us, and if there had been any resistance, 
they would have blown the vessel out of 
water, I suppose without a doubt. 

Q. You identify this defendant. Smith, 
as one of the men who came on board the 
vessel under the circumstances that you 
have described ? 

A. I do. 

Q. Do you know the value of the cargo 
on board the schooner at the time of her 
capture ? 

A. I do not. 

[Mr. AsuTON ofifered the chart in evi- 
dence,] 

Cross-examined by Mr. Wharton. 

Q. You have spoken of a French flag 
that was run up : was that flag pulled down 
at any time before your capture ? 

A. The French flag was pulled down and 
the Confederate run up when the Lieu- 
tenant was coming over the gangway, at 
the time of actual boarding. 

Q. At the time of actual boarding, you 
saw the French flag hauled down and what 
you call the Confederate flag run up ? 

A. They said it was the Confederate 
flag. I never saw it before. 

Q. I never saw it, and perhaps the jury 
never did, either; will you be kind enough 
to describe the flag that was run up, which 
you call the Confederate flag ? 



A. It has eleven stars, a red stripe and 
a white stripe — "the Stars and Bars" they 
call it, I shall not be sure about the 
stripes ; but it has eleven stars, and I think 
the stripes are red and white ; there are 
two stripes. 

Q. Do those bars or stripes run across 
or lengthwise? 

A. I cannot say positively. 

Q. Are the stars in the centre or in the 
corner? 

A. In one corner. 

Q. Did you hear the order given to haul 
down one flag and run up the other. 

A. I did not hear it from my own vessel. 
I was not on board the brig. 

Q. Then the brig lay at some distance ? 

A. She lay within hailing distance. 

Judge Cadwalader. I suppose the 
communications you gave us in the early 
part of your testimony were by the 
trumpet? 

The Witness. Yes, sir. 

Mr. Wharton. Was the order to haul 
down one flag and hoist the other, given 
by the boarding officer or by some one that 
you do not know ? 

A. Some one I do not know. 

Q. It was not given by the boarding 
officer that came on board of your vessel? 

A. No, sir, he ordered our flag to be 
hauled down. 

Q, You have spoken of him as the Lieu- 
tenant ; did he give himself that title ? 

A. He told me that he was Lieutenant 
and gave me his name. 

Q And therefore you got his title from 
himself? 

A. Yes sir. 

Q. Was that done when he first came on 
deck? 

A. No, sir, afterwards, — after he had got 
aft and took the Captain's papers. 

Q. Aft on board your vessel ? 

A. Yes, sir. 

Q. Did he say who his Captain was ? did 
he give the name of the Captain of the 
brig ? 

A. He did not. 

Q. You have mentioned, that when you 
got on board the brig, she was called the 
Jeff. Davis ; was that her name ? 

A. She had no name on her. They gave 
her that name. 

Q. You have described a good many 
things that you saw when you got on board 
— arms, &c. Did you see, or did they 
speak of, a commission which they held ? 

A. Not to my knowledge, any further 
than when boarding the schooner the 
officer said "you are a prize to the Con- 
federate brig, Jeff". Davis,"- nothing further 
than that. 

Q. You have already said that she had 



24 



all the appearance of a vessel of war in her 
equiiiments. armament, and every thing? 

A. She had. 

Q. How many davs were you on board 
of her ? 

A. "lliree days. 

Q. lldw were you treated? 

A. As well as could be expected under 
the circumstances. 

Q. T do not ask what your feelings were, 
only the actual fact as to your treatment. 

A. "We were not ill used after going on 
board. 

Q. I have not heard you describe any 
circumstance of ill usage in your ca]iture. 
There was nothing that occurred that you 
have not stated. 1 jnesume. "Was there no 
olher violence used than what you have 
already indicated by an officer coming on 
board with men and directing your sur- 
render. &c. ? 

A. None other. 

Q. In regard to the P^nchantress, did 
you part company with her on the same 
evening? You mentioned that about 8 
o'clock, when it was dusk, you went on 
board the brig, and then you parted with 
the Enchantress ; and therefore, you have 
no personal knowledue of the course she 
took ? 

A. No, sir. 

Q. Can you give us some general idea, 
without reference particularly to the 
chart, but with reference to some neigh- 
boring island or land, where you were when 
you were captured on that occasion, where- 
abouts you were, in what waters ? 

A. From two hundred to two hundred 
and fifty miles southeast from Nantucket 
South shoal. 

Q. That was the nearest land ? 

A. Yes, sir. 

Q. AVas that in your direct course to St. 
Jago ? 

A. Yes, sir. We were steering in a di- 
rect course. 

Q. You did not remain long enough 
upon the Enchantress at the time of her 
capture to know what course she was di- 
rected to take ? Do you know anvthing 
about that ? 

A. In the bustle of the moment, I did 
not take any notice of it. 

By Mr. tl aurison : 

C^. Did you ever see the defendant. Smith, 
until you saw him on board the Enchanircss 
on the 6th of July ? 

A. I never did. 

Q. How long did you have an oppor- 
tunity of seeing him on that occasion? 

A. An hour or more. 

Q. Have you seen him before to-day 
since he has been confined inMoyamensing 
prison ? 



A. T have been there and seen him. 

Q. How often have you seen him in 
prison ? 

A. I have been there twice I think. 

Q. Why did you go to see him ? 

A. I did not go in to see him in par- 
ticular. I went to see the priscm. 

Mr. Harrison. I ask why you went to 
see the prisoner and by whose authority 
did you go? 

The VViTNKss. I went because I wished 
to go. 

^Ir. Harriso.v. Was it a visit entirely 
of a friendly character that you made to 
Smith ? 

A. That was all, 

Mr. Ashton. Excuse me. It may be 
that the witness does not understand your 
question. 

Mr. Harrison. I will try to make him 
understand it. 

Mr. AsHi'ON. He went there by my 
authority one or twice. 

Mr. Harrison. Then I understand you, 
Mr. Page, that you were sent there or were 
authorized by the government officers to 
go to that prison ? 

The Witness. Yes, sir. 

Mr. Harrison. 'I'hat brings me to the 
very point to which my interrogatory was 
addressed: unless you had been directed to 
the cell where you were told Smith was, if 
you had met him anywhere else, would you 
have been able to identify him ? 

A. I would. 

Q. Your recollection of him was suffici- 
ent without the visit? 

A. Yes, sir. 

Q. The object of the vtsit, then, was not 
to enable you to identify Smith, or to see 
whether you could identify him ? 

A. It was not. 

Q. Why did you pay him a second visit ? 

A. Because 1 wished to go to the prison 
and see him. and 1 went upon authority. 

Q. Neither visit had any reference at all 
to the testimony you expected to give in 
this case ? 

A. None whatever. 

Q. AVhy did you go to see Smith? 

A. I had no particular reason, but I 
thought 1 would like to see them. 

Q. Did you go to see all of them ? 

A. 1 saw the whole of them. 

Q. Do you think you wouid be able to 
recognise Lieutenant Postell ? 

A. Yes, sir. 1 could recognise him if I 
met him in the dark, almost. 

Bi/ a Juror. 

Q. In what relation did the defendant 
stand to the rest of the party that boarded 
the Enchantress as a prize crew? Was he 
an associate, or the commander ? 

A. He was the prize master. 



25 



Re-examined by Mr. Kelley : 

Q. Had the marines of whom you spoke, 
any distinctive uniform ? 

A. They had not. 

Q. How did you know they were ma- 
rines ? 

A. I was told so on board the vessel. 

Q. Was there anything like uniformity 
of dress on board the vessel? 

A, There was not, to my knowledge. 

By Mr. Wharton : 

Q. You state that Smith was the prize 
master : do you know whether any instruc- 
tions were given to him? What was he 
told to do with his prize ? ^ 

A. I do not know. If there were any 
instructions given to him, I suppose it was 
on board the brig before he left it. I did 
not hear them. 

Q. You said he was the prize master : 
how did you know that? 

A. The lieutenant pointed him out to 
me and told me his name was Smith, and 
that he was the prize master, and immedi- 
ately when he came on deck, he took charge 
of the vessel and ordered the crew to make 
sail. 

Q. Did you hear at all what Smith was 
told to do with the vessel ? 

A. I did not. 

Q. You only know that he was the prize 
master, indicated by the lieutenant as 
such ? 

A. Yes, sir. 
] Jacob Garrick, called and sworn, and 
' examined by Mr. Ashtou. 

Q. How old are you ? 

A. About 25. 

iQ. Where were you born? 
A. In Santa Cruz, Danish West Indies. 
Q. What is your business ? 
A. I generally follow the sea as cook 
and steward. 

Q. How long have you followed the sea? 

A. About eight years and a half, I 
think 1 went to sea in 1852 or 1853. 

Q. What were your duties on board the 
Enchantress ? 

A, I was cook and steward. 

Q. When did she sail from Boston? 

A. On the first of July. 

Q.. You were on board of her on the 6th 
of July? 

A. Yes, sir. 

Q. Tell us what you saw that day ? 

A. On the 6th of July, about two or three 
o'clock, we made a sail. I heard them sing 
out "sail ho." I looked and saw the sail 
myself. We were going on our course 
with a pretty fair breeze of wind, this sail 
still coming on to us. It came on pretty 
late ; I had supper about half past five 
o'clock. When we came on deck after 
supper, we saw the sail, having the French 



flag flying. Some of the men said it was a 
French vessel. It kept coming along and 
got pretty near us. I was washing my 
dishes, and I heard one of the men sing out 
forward "that's a privateer." I looked 
over ray galley, and I saw they had the 
French flag set and were ramming home a 
cartridge. I saw the big gun amidships. 
She came around, hailed us, and told us to 
heave to. The captain sung out something 
to her, and she kept on and came round on 
the stern. Then 1 heard them sing out for 
us to lower away our fore-sail and haul 
down our jib. The captain did so, and 
hove our vessel to, and then I saw a boat 
come to us. Previous to that, when they 
got on the starboard side of us, they hauled 
down the French flag, and hauled up the 
Confederate flag. Then they lowered the 
boat. The boat came alongside of us, and 
some of the men got off and spoke to the 
captain. I took notice of a man with a 
glazed cap on and a white coat. 

Q. How many men came on board ? 

A. I cannot tell how many men were in 
the boat. It was a boat's crew. They 
rowed four oars, I know. 

Q. Where was the captain of the En- 
chantress ? 

A. Aft, on the quarter deck. 

Q. Did these men speak to the captain? 

A. Yes, sir, I saw them go and speak to 
the captain. I could not hear what they 
said because I was forward. 

Q. What did the captain do, if anything, 
after they had spoken to him ? 

A. He went down into the cabin. 

Q. Did he bring up anything with him ? 

A. I did not take notice whether he did 
or not. 

Q. What did these men do to the sailors 
on board the Enchantress ? 

A. They said " men, get ready to go on 
board the Jeff". Davis ; take all the things 
belonging to you." 

Q. Who said that ? , 

A. I heard that man (Smith) say so. 

Q. Was Smith one of those men ? 

A. Oh, yes, sir. 

Q. Did your captain go into the boat? 

A. Not at first. They took us on board, 
and then the boat returned to the Enchant- 
ress with the prize crew and took oif the 
captain, and his son, and the mate. 

Q. Were you in that boat? 

A. Yes, sir. 

Q. How near to the Jeff. Davis did yoa 
go? 

A. I was right alongside of her. Once 
I stood up and looked over the rail. 

Q. AVhere did the men of the Enchant 
ress go ? 

A. On board the Jeff". Davis. 

Q. Why did you not go ? 



26 



A. Well, I heard them say " take that 
colored individual back ; you need not pass 
up his things." 

Q. Did they refer to you ? 

A. Oh, yes. I knew they referred to me 
then. 

Q. How many men got into that boat, 
then, from the Jeff. Davis ? 

A. I do not know how many. The prize 
crew came in with their things, and there 
were some few more — the steward of the 
Jeff. Davis, and others. 

Q. Was this defendant one of the men ? 

A. Yes, sir. 

Q. One of those that sailed with you in 
this boat from the Jeff. Davis to the En- 
chantress ? 

A. Yes, sir. 

Q. Did this defendant go on board the 
Enchantress when you did ? 

A. Yes, sir. 

Q. When he went on board, where was 
the captain of the Enchantress ? 

A. He was aft on the starboard side, sit- 
ting down. 

Q. Who was with him? 

A. The captain's son and the mate. 

Q. How long was this defendant on the 
■ Enchantress before the order was given to 
the captain to leave ? 

A. I suppose about ten or fifteen min- 
utes at the longest. 

Q. Who ordered the captain to leave ? 

A. The officer who came from the Jeff. 
Davis told the captain to stay, and his son 
and mate. The others went on the boat to 
the Jeff. Davis. Then the boat returned 
back and took them aboard. 

Q. Was the captain ordered to get into 
the boat then ? 

A. Yes, when they were ready. 

Q. What was done ? 

A. The captain went in, and took his ' 
things with him. 

Q. Who went with him ? 

A. His son and the mate. 

Q. Where were you then ? 

A. I was left on board the Enchantress. 

Q. When the brig hove to, how far was 
she from the Enchantress ? 

A. I suppose she was about as far as from 
here down to the corner there, [meaning 
the distance diagonally across the court 
room from one corner to the opposite one!] 

' Q. Did you see her plainly ? 

A. Oh, yes, sir. 

Q. How long after the captain left, did 
they make sail ? 

A. As soon as the captain left, the boat 
returned back and brought the prize crew 
some tobacco from the Jeff. Davis, and in 
a few minutes the Enchantress set sail. It 
was dark. 

Q. Who took command of her ? 



A. Smith. I suppose he did, because he 
ordered me to get some supper for him. 

Q. Did you get the supper ? 

A. Yes, sir, I got him some tea. 

Q. During the time you were on board 
the Enchantress under Smith, what was 
your position? what did you do? 

A. I was cooking, the same as before. 

Q. How long were you on board the En- 
chantress then ? 

A. Sixteen days from the day we were 
captured. 

Q. When were you recaptured ? 

A. On the22d of July. 

Q. Now tell us what occurred on the 22d 
of July? 

A. Soon after dinner I took my dishes 
to the galley and washed them. In going 
liack to the cabin with the dishes, I saw 
Smith have a spy glass. I looked under 
the lee of the mainsail and I saw a vessel 
coming that I thought was a steamer. I 
took my dishes down and came back and 
took another look, and I saw it was a 
steamer. The steamer was coming right in 
our direction. Smith said to the men to 
take the flying jib off to bend ; but they 
sang out to Smith, "you had better not 
bend that jib now, because if they see us 
making sail they will think something and 
come at us." He said, " go ahead and bend 
it." Then they started out to bend it, and 
he said " never mind, you can let it lie." 
Then I heard him say, " one of you men go 
up and sheer over that topsail sheet." A 
man went up to do it, and was there a con- 
siderable while. Then Lane said to me, 
"you can go in the forecastle, steward ; and 
if they should come and overhaul us, and 
your name is called, you can answer." I 
said I would rather stay in the galley. I 
went in the galley and watched the steamer 
coming. When the steamer saw us tack 
ship, she hauled right up for us. I kept 
looking through from one galley door to 
the other according as we would go about. 
We went about three or four times. The 
schooner was going pretty fast. I still 
kept looking to see how near the steamer 
was getting to us. I heard one of the men 
say, "she has hoisted her flag," and they 
went out jind hoisted our flag. The steamer 
hoisted the American flag, and we hoisted 
our American flag. The steamer kept 
coming on. I heard them say, " it is a 
man-of-war." When the steamer got pretty 
close to us, I heard a hail " what schooner 
is that?" The reply was, "the Enchan- 
tress." " Where bound to ?" " St. Jago 
de Cuba." As soon as that was said, I 
jumped out of my galley and jumped over- 
board. 

Q. How far was the steamer from you ? 



27 



A. About across tbis room, — within 
speakine^ distance. 

Q. What did you do when you jumped 
into the water ? 
J A. I sang out " a captured vessel of the 
privateer Jeff. Davis, and they are taking her 
into Charleston." I sang it out so that 
they could hear me on board the steamer. 

Q, How did you get out of the water? 

A. The steamer's boat picked me up. 

Q. What was done then ? 
A. First, when the boat picked me up, 
they took me on board the schooner, and 
then they took the prize crew ott' the schoo- 
ner and took me on board the steamer along 
with them. 

Q. Did they take this defendant out of 
the schooner ? 

A. Yes, sir. 

Q. Where did they put him? 

A. They took him on board and stood 
him up on deck, and then they took him 
below. 

Q. When the steamer was coming down 
to you. did you hear this defendant or any 
of these men make arrangements about 
what they would do? 

A. Oh yes, they were arranging them- 
selves to take the names of the Enchan- 
tress' crew. 

Q. How do you mean ? 

A. One was to act in place of the cap- 
tain with his name ; another in the place of 
the mate with his name ; and so on through 
the crew. 

Q. Was there not one less of these men ? 

A. Yes, they were one short. 

Q. What about that? 

A. I heard that they were to say that 
man was washed overboard. 

Q. To whom was all that to be said ? 

A. If any of the United States armed 
vessels should speak them, they were to do 
this, of course, to get clear. 

Q. What was the name of this steamer ? 

A. The Albatross. 

Q. Do you know her commander? 

A. Captain Prentiss. 

Q. What did they do with the schooner 
when they boarded her ? 

A. The first lieutenant boarded her and 
took the prize crew off her, and made them 
row him to his own vessel, leaving his 
boat's crew on board to take charge of the 
Enchantress. I 

Q. What did they do with the schooner ? \ 

A. A prize crew was put on board from ] 
the steamer, with me along as cook. Then ' 
we made sail in her and steered to Hamp- 
ton Roads. The steamer came up to us. i 
threw us a hawser, and towed us to Hamp- 
ton Roads. I 

Q. How did you get to Philadelphia ? I 

A. After being there seven or eight days 



the steamer came again, took us in tow, 
and brought us up here. 

Q. And you have been here ever since ? 

A. Yes, sir. 

Q. Are you a man of family ? 

A. No, sir. I have a brother in New 
York. 

Q. What flag had the Enchantress flying 
when she was captured ? 

A. The American flag. 

Q. What flag did she carry after she was 
captured ? 

A. The American flag. She had no 
other on board. 

Q. This prisoner, then, kept the Ameri- 
can flag still on the vessel ? 

A. Yes, sir, all the flags on board were 
American. 

Q. Do you know where you were at the 
time the Albatross took you ? 

A. I heard them say we were near Cape 
Hatteras on the coast of North Cai-olina. 

Q. Who did you hear say that ? 

A. The man Bradford, I think. 

Q. How long after you saw the Hatteras 
light, were you captured by the Albatross ? 

A. We saw the lighthouse in the morn- 
ing about six o'clock, and we were taken 
by the Albatross about three o'clock in 
the afternoon. 

Q. Do you know in what direction the 
Enchantress sailed after the prize crew, 
the defendant and the other four men, were 
put on board her ? 

A. I heard them say to steer the course 
southwest, they were going to Savannah ; 
but after they were a few days out they 
said they would not go to Savannah but to 
Charleston. By going to an inlet called 
Bulls', they said they could take a steam- 
boat and be towed up to Charleston. 

Q. How long did it take you to get from 
the place where you were taken by the 
Albatross, to Hampton Roads? 

A. Soon after we were taken, a gale of 
wind came up, and it took a long time to 
tow us with the wind ahead. We should 
have been in the next day if it were not for 
that, but the following day we were in at 
Hampton Roads. 

Q. Did the Albatross take you in the di- 
rection the Enchantress was sailing at tliat 
time, or in the opposite direction ? 

A. She turned back. 

Q. Then you weut north after the re- 
capture ? 
A. Yes sir. 

Q. You spoke of a place called Bulls, 
do you know where it is ? 

A. I do not, but I heard them say it was 
twenty-five miles from Charleston. 
Q. Who told you so ? 
A. I heard them say so on board among 
themselves. 



28 



Q. Did these persons keep the log after 
the Enchantress was taken ? 

A. No, sir, they did not keep any log. 

Q. Was the log book on board ? 

A. Yes, there were two logs. 

Cross-examined hy Mr. Wiiakton. 

Q. You were cook originally, and you 
continued in your ordinary pursuits ? 

A. Yes, sir, I cooked for them. 

Q. You held the office of cook under 
every change of administration ? 

A. I cooked for four captains. 

Q. Did you hear the instructions that 
were given, or did you hear these men say 
■ where they were told to take the Enchant- 
ress ? 

A I never heard them say where they 
were told to take her. I heard them say 
where they were going to take her. 
■ Q. Where was that ? 

A. They started to take her to Savannah. 
After they were a few days out, they 
altered and said they would take her to 
Bull's so as to get her up to Charleston. 

Q. Then they were to take her either to 
Savannah or Charleston as far as you under- 
stood ? 

A. Yes, sir. 

Q. You did not hear Smith or any of 
them say where they were told to take her 
by the persons who put them on board ? 

A. No, sir, but I heard from the Jeff. 
Davis, several give messages to friends in 
Savannah. 

Q. Who was the Captain of the Jeff 
Davis ? 

A. I do not know. 

Q. Do you know his name ? 

A. No, sir. 

Q. You think you were off Cape Hatte- 
ras when the Albatross came along ? 

A. Yes, sir. 

Q. And you were steering southwest ? 

A. Steering to Charleston. I do not 
know the course we were steering that 
day. 

Q. The Albatross took you in tow and 
brought you into Hampton Roads ? 

A. Yes, sir. 

Q. Did you come to anchor in Hampton 
Roads ? 

A. Yes, sir. 

Q. Smith was there ? 

A. He was on board the gun boat. 

By Mr. Asiiton. 

Q Did you see Smith at Hampton 
Roads ? 

A. No, sir. I did not see any of them 
at Hampton Roads. 

Q. Then Smith was kept on board the 
Albatross, and you were with the prize 
crew of the Albatross ? 

A. Yes, sir. 

Mr. Wharton. The Albatross towed 



you to Hampton Roads, and she and the 
Enchantress arrived there together, and 
stayed there about a week you say ? 

A. Yes, sir. 

Mr. AVharton. Did the Albatross lay 
with you at Hampton Roads ? 

A. No, sir. She was out cruising around. 
She went to relieve a gun boat somewhere 
up the river. 

Mr. Wharton. But what was done 
with Smith ? 

A. 1 do not know. 

Q. Do you know what they did with 
Smith and the other men of the original 
prize crew ? 

A. I will say I did not see Smith nor 
any of them after they were taken on board 
the Albatross when they were captured, 
until I saw them here. 

Q. Did you not see them at all at Hamp- 
ton Roads ? 

A. No, sir. 

Q. I suppose the Albatross came to 
anchor in Hampton Roads ? 

A. Yes, sir ; she lay some two days 
there. 

Mr. Harrison. How far from the 
shore ? 

A. I suppose as far as from here to the 
corner ; I cannot tell exactly. 

Mr. Wharton. A very short distance ? 

A. Yes, sir. 

Q. What was the nearest place ? 

A. AVe lay right abreast of Fortress 
Monroe. 

Q. How near were you to the fort ? 

A. I suppose we were about four hun- 
dred or five hundred yards from Fortress 
Monroe. 

Q. Do you know that the crew from the 
Albatross were sent ashore there ? 

A. I do not know any more than that I 
saw boats from the Albatross go ashore. 
Boats were going backwards and forwards 
from the vessel to the wharf. 

Mr. Harrison. For two days ? 

A. Whilst they lay there. They lay 
there a couple of days. 

Mr. Wharton. Then the Albatross 
went off on a cruise ? 

A. She went up the river. 

Q. What river ? 

A. I do not know the names of the 
rivers there, 

Mr. AsHTON, Did you see all this. 

A. I saw when they hauled across and 
went up the river. 

Mr. Wharton. How long was she 
gone ? 

A. I cannot tell rightly now. 

Mr. Wharton. You seem to have been 
very accurate in your recollection of other 
dates and I thought you might recollect 
this. 



29 



The Witness. Well, she was away 
about five days. She came up ia the 
night. 

Q. Did she take you in tow again ? 

A. She came up in the night, and next 
day she took us in tow. 

Q. And then brought you to Phila- 
delphia ? 

A. Yes, sir. 

Q. You say you did not see Smith till 
you arrived here ? 

A. No, sir. 

Q. On board what vessel did you then 
see him ? 

A. I saw him here in the Court. 

Q. You did not see him on board the 
Albatross ? 
4, A. No, sir. 

(.},. Who were the persons that went 
from the Albatross to the fortress in boats 
and back again? 

A. I do not know who they were. 
The Court adjourned till to-morrow. 

Wednesday, October 23, 1861. 

John C. Fifield called and sworn, and 
examined by Mr. Ashton. 

Question. Where do you reside? 

-Answer. In New Jersey. 

Q. What is your business ? 

A. Seafaring business. 

Q. How long have you been following 
the sea? 

A. About sixteen years. 

Q. Where have you sailed from ? 

A. I have sailed from the port of Boston 
and from this port. 

Q. From what port did you sail last ? 

A. Philadelphia. 

Q. In what vessel ? 

A. The John Welsh. 

Q. As captain of that brig? 

A. Yes, sir. 

Q. Was she a Philadelphia built brig? 

A. She was built in Gloucester, but 
owned in Philadelphia. 

Q. Where were you bound when you 
sailed from Philadelphia last in that 
brig? 

A. To Trinidad de Cuba. 

Q. Did you reach Trinidad de Cuba? 

A. Yes, sir. 

Q. Did you sail back fr«m Trinidad de 
Cuba? 

A. I sailed for Falmouth, England, with 
a cargo of sugar from Trinidad. 

Mr. Wharton. I presume the object is 
to bring this gentleman in some way into 
contact with the defendant. 

Mr. AsHTON. That is all. 

Mr. Wharton. The mode of doing that, 
I suggest, is not important to us. 

Mr. Ashton (to the witness.) Have you 



seen William Smith, the prisoner at the 
bar, before? 

A. Yes, sir. 

Q. Where did you see him first? 

A. I first saw him on board the John 
Welsh. 

Q. Where did you see him next ? 

A. On board the Jeff. Davis, or what 
was said to be the Jeff. Davis. 

Q. How did you happen to be on board 
the Jeff. Davis ? 

A. I was captured by her. 

Q. What was the date of the capture ? 

A. The 6th of July. 

Q. At what time of the day did it occur ? 

A. I should think about nine o'clock in 
the morning. 

Q. How did you happen to get on board 
the Jeff. Davis ? 

A. I was taken in their boat. 

Q. And on board the Jeff. Davis you 
saw for the second time William Smith ? 

A. Yes, sir. 

Q. What was his capacity on board that 
vessel ? 

A. I was told that he was prize-master. 

Q. How long were you on board the 
Jefl'. Davis ? 

A. I was captured on Saturday, about 
nine o'clock, and was on board until the 
Tuesday evening following. 

Q. How many days did you see William 
Smith, the prisoner, on board the Jefl". 
Davis ? 

A. I only saw him till that Saturday af- 
ternoon. 1 suppose he left about six or 
seven o'clock ; I cannot state exactly when. 

Q. You recognize him as the person 
whom you saw on board that vessel? 

A. That is the man [pointing to the 
prisoner.] 

Q. Did you see the assault upon the 
schooner Enchantress? 

A. No, sir; I was below. When the 
Jeff. Davis came within about three miles 
as I supposed of the Enchantress, we were 
all ordered below. 

Q. At what time in the day did you first 
see the sail of the Enchantress ? 

A. I cannot say when, precisely. I saw 
it probably by three o'clock ; at what time 
they saw her, I do not know ; there were 
some three or four sails at the time ; I do 
not think I saw her more than two or 
three hours before she was brought to. 

Q. How long after the chase began, were 
you ordered below ? 

A. When we came within about three 
miles of her, all the prisoners on board 
were ordered below. 

Q. How long did you remain below ? 

A. Until she was boarded by the boat 
from the Jeff. Davis. After she was 
boarded, we came on deck. 



30 



Q. Did you see the flag that she had fly- 
ing (luring the chase ? 

A. Yes ; we saw that out of a small 
window. When she came alongside, she 
had the American flag. 

Q. But I mean the flag of the Jeff. Pavis? 

A. We saw that out of the skylight ; we 
watched when they hauled the French flag 
down, and hoisted what I suppose is called 
the Confederate flag. 

Q. At what time did they hoist the 
Confederate flag ? 

A. Js^ot until the vessel was probably 
not more than a quarter of a mile off"; I 
should think she was less than a quarter of 
a mile distant ; she was alongside, close 
under the guns. 

Q. Did you see William Smith leave the 
Jefl'. Davis for the purpose of going on 
board the Enchantress ? 

A. Yes, sir; I saw him leave as prize- 
master ; that is what was said. 

Q. Then you were ou deck at that time? 

A. Yes, sir. 

Q. How many left with him ? 

A. That I could not say, as there was 
iu the boat a number of the other crew. I 
understood that he went as prize-master to 
take charge of the schooner. 

Q. Then you saw him go on board the 
Enchantress ? 

A. I saw him leave the brig. I did not 
notice particularly his going on board the 
Enchantress. 

Q. How long after William Smith left 
did the Jeff". Davis make sail? 

A. I do not think she made sail that 
night at all ; it was dark. After he left, 
the boat that took him and the prize crew 
on board the Phichantress, brought to the 
Jeff. Davis Captain Devereux, his son, and 
mate, I think ; three or four of them ; and 
it was then dark. 

Q. Did you see the Enchantress make 
sail? 

A. Yes, sir; I saw her make sail, and 
stand away ; but I think the Davis lay 
still all that night ; it was squally and rainy. 

Q. William Smith did not return with 
the boat that brought Captain Devereux 
and the mate to the Jeff. Davis ? 

A. No, sir ; I did not see him on board 
again while I was there. 

Q. Did you see any preparations that 
were being made on the Jeff". Davis ? 

A. Yes, sir ; the guns were all got ready, 
the ports were unlashed, the waist guns 
were pointed, and the swivel was shotted 
and manned, and all ready to fire into her 
if it was needful in order to capture her. 

Q. What do you mean by the swivel ? 

A. The long gun amidships, which they 
could turn all the way round. They 
brought it to bear on the Enchantress, be- 



fore she came within hailing distance, and 
kept it bearing on her all thn while. As 
soon as the vessel went around in any di- 
rection, they swivelled the gun around so 
as to bear on the vf'ssel. 

Q. Did you see them load that gun ? 

A. No, but I think it was kept loaded 
all the time. 

Q. IIow many guns did the Jeff. Davis 
carry ? 

A. She had four waist guns and this 
swivel. 

Q. Do you know the calibre of the guns ? 

A. 1 do not. 

Q. Do you know whether those guns 
were loaded at the time of the assault on 
the Enchantress? 

A. I was told they were loaded. 

Q. Told by whom ? 

A. By the purser and assistant surgeon. 

Q. During the time William Smith was 
on board the vessel ? 

A. Yes, sir. 

Q. Did you see any other arms on board 
that ship, with the exception of those you 
have mentioned ? 

A. Yes, sir; I saw muskets, double bar- 
reled guns, pistols, cutlasses, boarding- 
jiikes. I should think there were about 
fifty muskets with bayonets ; I cannot say 
how many double barreled guns, but quit© 
a number. 

Q. How many cutlasses? 

A. I cannot say. 

Q. Where were they kept? 

A. In the cabin. 

Q. Were you down in the cabin often ? 

A. Yes, sir, I slept in the cabin. 

Q. Do you know whether the muskets 
and double barreled guns you speak of, 
were kept loaded ? 

A. Yes, sir, they were said to be loaded. 

Q. Who said so ? 

A. The captain of the marines. The 
double barreled gnus were loaded with buck 
shot, and the others with balls, I was told. 

Q. How many men were there on board 
the Jeff. Davis during this cruise — I mean 
of her company? 

A. It was said there were seventy. I 
never had any means of ascertaining the 
number, but I should think there were 
about that many; that is, when I was cap- 
tured ; nine weje taken out and put on 
board my vessel ; that reduced their num- 
ber, and made it sixty-one. 

Q. Were there persons ou board who 
were termed marines ? 

A. Yes, sir. 

Q. What were their duties on board that 
ship? 

A. They kept guard over the cabin at 
night. I cannot say what their duty was 
otherwise. 



31 



Q. Were they armed during the day ? 

A. No, sir; but during the night they 
were. 

Q. What arms had they ? 

A. They had the muskets then, and the 
captain of marines generally had a pistol 
or two when he was on deck himself. 

Q. Did these men wear any distinctive 
uniform ? 

A. No, sir; there was no particular uni- 
form on board the vessel ; they were dressed 
just as it happened. 

Q. Was there a magazine on board the 
ship? 

A. Yes, sir. 

Q. Did you see any powder and balls ? 

A. I sawthe powder as it was passed 
out of the magazine. 

Q. Where was it passed ? 

A. On deck, to load the guns. Before 
they captured the Mary Goodell, prepara- 
tions were made for a severe attack on her, 
and at that time a number of small arms 
were carried on deck ; that was the only 
time I saw the magazine opened. 

Q. Did you bear any conversation be- 
tween William Smith and the officers of 
the Jeff. Davis, at the time he left for the 
purpose of going on board the Enchan- 
tress ? 

A. No, sir ; I saw him in conversation 
with them, but I heard nothing of what 
was said. 

Q. You said that William Smith went 
on board your ship : in what capacity ? 

A. He seemed to have charge of a lot 
of men who came to take provisions out of 
the vessel. 

Q. You said that you were ordered to 
go down below when the assault was made 
on the Enchantress? 

A. We were all ordered to go below, or 
lie down on deck, except the ordinary crew 
of a merchant vessel, say four or five men. 
They were about the vessel, but the rest 
were ordered to lie down ou deck or go 
below. 

Q, Was there any peculiarity that you 
noticed about the rigging of this vessel, 
the Jeff. Davis ? 

A. Her sails were mostly hemp sails; 
that was one peculiarity which led me to 
suppose she was a foreign vessel. 

Q. Explain that. 

A. American vessels mostly have cotton 
sails, by which you can tell them very dis- 
tinctly wherever you see them at sea; they 
are much whiter than hemp sails ; all 
European vessels have hemp sails ; and 
you can usually tell whether a vessel at sea 
is an American or foreign vessel by the 
sails, when you see nothing else. 

Q. Then it is to some extent a badge of 
nationality ? 



A. You very seldom see a United States 
vessel, particularly of that class, with hemp 
sails. The Jeff. Davis had, and she was 
rigged very much like a foreign vessel; 
they asked me if the French flag and hemp 
sails had deceived me, and I told them yes. 

Q. Who asked you that? 

A. The first lieutenant, Postell. He 
said they tried to get her as much like a 
French vessel as possible, before they left, 
for the sake of deceiving our ships. 

Q. At what distance would one on the 
sea observe the guns of this brig? 

A. I did not observe them until I was 
within half a mile of her, as they were 
kept covered up. Thinking she was a 
merchant vessel, we did not suspect any- 
thing until we were right underneath her 
guns ; and the others told me it was the 
same with them. 

Q. How were the guns kept covered up ? 

A. They had a large canvass covering 
that they had painted and thrown over the 
long swivel gun. The waist guns were also 
covered up with canvass. 

Q. Was the canvass painted black ? 

A. I cannot say what color it was 
painted. 

Q. What was the color of the vessel ? 

A. She was painted black, 

Q. When was this covering removed ? 

A. It was removed about the time they 
wanted to fire the guns. 

Q Did they fire a gun when they cap- 
tured your ship ? 

A. Yes, sir. 

Q. From what gun, and in what direc- 
tion, was it fired? 

A. Frem the swivel gun . 

Mr. Wharton. (To the witness ) Not at 
the ship, but across the bow, to bring you 
to, I suppose. 

The Witness. We were running to the 
eastward ; and the gun was fired so as to 
make the ball cross alongside of us. 

Mr. AsHTON. Was it not a blank car- 
tridge ? 

A. No, sir, a ball. 

Q. Were Captain Devereux and the 
mate of the Enchantress released with 
you? 

A, Yes, sir, on the ship Mary Goodell. 

Q. What reason did the captain of the 
Jeff". Davis give for the release of Captain 
Devereux, and Mr. Page, and the rest of 
you? 

A. He did not give me any himself; I 
had it from the other officers. The ship 
drew too much water to allow her to be 
got into a southern port, and her cargo 
was not of much value, being mostly lum- 
ber. 

Q. What ship ? 

A. The Mary Goodell. 



32 



Q. Was she a large vessel? " 

A. I should think she was about seven 
hundred tons and drew eighteen feet of 
water. They then had twenty-one prisoners 
on board the JefF. Davis, and they did not 
want any more then. Besides, they wanted 
to reserve their crew for more valuable 
prizes. 

Q. Did they visit the Mary Goodell? 

A. Yes, sir. 

Q. How many went on board her ? 

A. A large boat load — I cannot say 
what number; some marines with cutlasses 
and muekets. 

Mr. Harrison. That was after the de- 
fendant had left. I do not know that that 
is evidence in this case. 

Judge Grier. This is only part of the 
history of the conduct of this vessel, to 
show what her character was. So far as 
that is concerned, it may properly be given 
in evidence. 

Question by Mr. Ashton. Were any of 
the contents of the IMary Goodell removed 
from her ? 

Judge Grikr. That seems to be getting 
beyond the transaction. 

Mr. Harrison. I presume we are not to 
be affected by any unlawful acts committed 
by others. 

Mr. AsHTON. I will not press that. Mr. 
Fifield how did you get into Philadelphia? 

The AViTNKss. Tlie ship Mary Goodell 
went to Portland, and from there I came 
to Philadelphia by the usual route. 

Cross-examined by Mr. Wharton. 

Q. You have been master of a vessel, 
and know somewhat of the usages of the 
sea? 

A. Yes, sir, T have been long enough on 
the sea to know something of it. 

Q. Firing a shot across the bow of a 
vessel is a sort of invitation to her to stop, 
and not to go on ; is it not ordinarily so 
understood ? 

A. Yes, sir, a blank cartridge is gene- 
rally so understood. 

Mr. Wharton. A blank cartridge does 
not pass in front of the bow. 

Judge Cadwalader. The witness is 
right ; the first shot is a blank. 

The Witness. The first is a blank car- 
tridse, next a ball. 

Mr. Wharton. But I mean to say the 
firing across the bow is of course not a 
firing at the vessel. It is an intimation, a 
very distinct one, to the vessel, that she is 
not to go ahead. 

The Witness. That is the intimation I 
took. I expected that the next shot would 
come into me. 

Mr. Wharton. You have spoken of cer- 
tain preparations made on the deck of the 
vessel in regard to the pivot guu, which 



you say was turned round so as to follow 
the Enchantress. I understood you to say 
that when she was about three miles off 
you were ordered below. 

A. Yes, sir. 

Q. When you were below, you could 
hardly see the preparations on deck, could 
you? 

A. We could see them at work on the 
swivel. The cabin was not very low ; it 
was half under deck, and half on deck. 

Q,. I wanted to understand whether you 
could actually see what was going on. 
You say you could ? 

A. Yes, sir. The cabin was half under 
and half on deck, so that you could stand 
and see what was going on. 

Q. You have mentioned already several 
officers who were on board the Jeff". Davis. 
Just tell us, if you please, who the officers 
were, what were their particular ranks, 
how many officers there were, as near as 
you can ? Give us the arrangement of the 
ship's company. 

A. Coxsetter was the commander; Pos- 
tell was the first lieutenant. 

Q. Did you ever hear Coxsetter called 
captain ? 

A. I do not know that I ever did. Per- 
haps I did. I do not recollect. He was 
considered captain. Whether he was 
called " Captain Coxsetter" or not, I can- 
not now say. 

Q. Give us now the other officers? 

A. Postell was first lieutenant, and there 
was a man named Stewart second lieuten- 
ant ; I think that was the capacity they 
held there. Babcock was the purser and 
assistant surgeon ; I think that was what 
they called him. 

Q. Did he hold both posts? 

A. So I was told. 

Q. Then there was a surgeon, I take it 
for granted, besides the assistant? 

A. Yes, sir, but his name I do not know. 

Q. Can you give us either the names or 
titles of any other officers on board ? 

A. I cannot. 

Q. You have spoken of marines, — who 
were their officers? 

A. There was a captain of marines. 

Q. Did they seem to be equipped diff'er- 
ently from the rest of the ship's company ? 

A. Only when they were on watch at 
night. Then they stood guard over the 
cabin with muskets, and the captain of 
marines had a pistol when he was on deck. 

Q. Did they not seem to be a distinct 
body of men from the rest of the crew ? 

A. I should think probably they were. 
I do not know what duty the marines did 
outside of that. They cleaned the guns 
and the small arms they had in the cabin. 

Q. You have said that Smith, the pris- 



33 



oner, was appointed or designated as prize 
master, — just tell us if you please all that 
passed on that subject. 

A. I know nothing of what passed, ex- 
cept that before the papers were fixed I 
saw the captain and the purser in conver- 
sation with Smith. There may have been 
some others with them. That was a little 
while bpfore he left. 

Q. What " papers" do you refer to ? 

A. I saw a letter handed to hiiu. 

Q. By whom ? 

A. I think Dr. Babcock, the purser. 

Q. A sealed letter, or an open letter? 

A. I do not know anything about that. 

Q. Did you not hear any of the language 
used? 

A. Nothing whatever. 

Q. You said in your examination in chief 
that he was appointed prize master ? 

A. I was told he was appointed prize 
master. 

Q. By whom were you told ? 

A. I think by the purser. Dr. Babcock. 

Q. Did he tell you so after Smith had 
left, or at the time he left ? 

A. After he left, I heard different per- 
sons on board the Jeff. Davis speak about 
him and his feelings. They wondered how 
he must feel, and spoke of the risks he had 
to run, &c. 

Q. And they spoke of him on those oc- 
casions as having been designated as prize 
master ? 

A. Yes, sir, as having charge of the 
vessel. 

Q. Then what you saw of the actual 
occurrence of his being appointed prize 
master was merely that he took a letter 
and was pointed out and took some men 
with him, I presume ? 

A. Yes, sir. 

Q. Did he select the men, or were they 
selected for him ? 

A . I do not know who selected the men. 

Q. This you also saw from the cabin ? 

A. We were on deck then. 

Q. Then it was after you came up on 
deck, and after the Enchantress was 
boarded ? 

A. Yes, sir ; as soon as she was boarded 
we were allowed to go on deck. 

Q. Did you hear any instructions given 
to him at all ? 

A. I did not. 

Q. Did you know what instructions were 
given? 

A. I knew nothing of them. 

Q. You do not know where he was to 
take the Enchantress ? 

A. No, sir. 

Q. You do not know what he was to do 
with her ? 

A. No, sir ; I know nothing at all about it. 



Q. You say you slept in the cabin, — had 
you as good accommodations as the vessel 
afforded ? 

A. I suppose about the same as any one 
on board. We all slept there together, 
and the captain of marines slept there. 
The captain and the purser had state 
rooms. 

Q. But the captain of marines and your- 
self slept in the cabin ? 

A. We slept in berths which were put 
up in the cabin. 

Q. What was your treatment generally ? 

A. We had all we wanted to eat, but 
mostly out of my own provisions. 

Mr. Wharton. But you were allowed to 
eat your own bread, which is not the case 
with everybody. 

The Witness, Yes, sir, we had all we 
wanted in that way. 

Q. You have stated that you were or- 
dered below, when the vessel came within 
a few miles of the Enchantress, — at other 
times, had you not your liberty about the 
vessel ? 

A. We had. 

By Mr. Harrison. 

Q. Was not the shot of which you speak 
as having been discharged by the Jeff. 
Davis, discharged at such an angle as to 
make it impossible for it to take effect 
upon the John Welsh ? 

A. I cannot say at what angle the ball 
was shot. I heard the ball go by, whiz- 
zing. 

Q. How far ahead of the bow did it 
pass ? 

A. I did not see. I heard it, but did 
not see it. 

Q. Are you not sailor enough to know 
that it passed sufficiently ahead of the bow 
to make it impossible that it should take 
effect ? 

A. It might have hit the spars. 

Mr. Wharton. That was the shot at the 
John Welch, — not at the Enchantress, 

The Witness. Yes, sir; I am positive 
no shot was fired at the Enchantress, 

Re-examined by Mr. Ashton. 

Q. You have beeu a sailor for several 
years ? 

A. About sixteen years. 

Q. You have come across naval vessels 
of the United States frequently on the sea? 

A. Yes, sir. 

Q. Did you ever know a vessel of the 
United States Navy fire first a shot to 
bring a vessel to ? 

A. No, sir; nor of any other navy. A 
blank is always fired first. 

Q. Was there any cargo on board the 
Jeff. Davis? 

A. None that I know of. I should think 
not, as she was very light. 



34 



Re-cross-examined by Mr. Wharton. 

.Q. Did you ever know a vessel of the 
United States V)ring a merchantman to. with- 
out 6rino^ at all, ball or blank cartridge? 

A. I do not know that I ever did. 

Q. Then this was a singular instance in 
the case of the Enchantress, of the Jeff. 
Davis bringing her to without any firing? 

A. Yes, sir. It was because she hove 
to before there was any occasion to fire ; 
but all the preparations were made. She 
was so close that it was not necessary to 
fire a shot to bring her to. 

John L. Priest recalled, and examined 
by Mr. Ashton. 

Q. I omitted, yesterday, to ask you one 
or two questions, that may or may not be 
important. What was the gross value of 
the cargo on board the Enchantress, in 
round numbers? I do not want you to be 
very particular. 

A. I could hardly make an estimate ; 
but I should judge, from the papers I have 
since seen about the salvage cause, that 
the cargo cost from seven to eight thou- 
sand dollars. 

Q. You enumerated, yesterday, a num- 
ber of articles that were on board : what 
were those seventy-five sacks of corn 
worth ? 

A. About $100, or a little over. 

Q. What were those twenty-three thou- 
sand feet of white pine boards worth ? 

A. About $350. 

Q. What were those fifty boxes of can- 
dles worth? 

A. About $6 a box. 

Q. Then there were two hundred cov- 
ered hams ; what were they worth ? 

A. I cannot say exactly, but I should 
think about eleven cents a pound. 

Judge Grier. It is unnecessary to have 
the particular value of everything. No 
doubt they were valuable articles. 

Judge Cadwalader. They were articles 
acquired for the purpose of being sent for 
sale. Of course, they have value. 

Mr. AsHTON. I did not think this testi- 
mony was absolutely necessary ; but I 
wished to cover the ground fully. 

Judge Cadwalader. I think you have 
enough. 

Mr. AsHTON (to the witness). Wm. H. 
Greeley, of whom you spoke, was a mem- 
ber of the firm of Greeley & Son, of 
Boston ? 

The Witness. Yes, sir. 

Q. The goods were shipped in his name ? 

A. Yes, sir. 

Thomas Ackland called and sworn, and 
examined by Mr. Ashton. 

Q. Where do you live ? 

A. la Philadelphia. 



Q. What is your business ? 

A. I go to sea, and have followed it for 
twenty-one years for a living. 

Q. In what vessel did you last sail ? 

A. The John Welsh. 

Q. What was your capacity on bo.ird 
the John Welsh ? 

A. First officer. 

Q. Were you on board her at the time 
of her capture by the Jeff. Davis ? 

A. I was. 

Q. Were you taken to the Jeff. Davis ? 

A. I was. 

Q. Were you on board the Jeff. Davis at 
the time of the assault upon the Enchant- 
ress ? 

A. I was. 

Q. What time in the day were you cap- 
tured ? 

A. As near as I could tell you, it was 
between eight and nine o'clock in the 
morning. 

Q. On what day and at what time of the 
day, was the assault upon the Enchantress 
made? 

A. About seven o'clock in the evening. 
They got on board the brig about seven 
o'clock in the evening. 

Q. Then you were on board the Jeff. 
Davis at the time of the assault and cap- 
ture of the Enchantress? 

A. Yes, sir. 

Q. Be good enough to tell us briefly, and 
in your own way, what vou saw on that 
day. the 6th of July? 

The Witness. What time do you wish 
me to commence from ; the time of our 
capture, or that of the Enchantress ? 

Mr. AsHTON. From the time you first 
saw the Enchantress. 

A. The man at the mast head made a 

sail about two o'clock in the afternoon, 

and of course she drew nigher to her until 

about four o'clock, somewhere toward 

evening ; I cannot state the time exactly. 

About seven o'clock they got on board of 

us. Between these times, two o'clock in 

the afternoon and seven o'clock in the 

evening, they took a boat from the Jeff. 

! Davis, which was the John Welsh's boat, 

; and went on board the Enchantress, with 

the first lieutenant, Mr. Postell. I believe 

they had arms with them. 

I Q. How many men ? 

! A. I cannot say ; but probably from 

I eight to a dozen. 

I Q. How did they get the John Welsh's 
boat ? 

A. They took it from the John AVelsh. 

Q. Was it a large boat ? 

A. A pretty good sized boat. 

Q. A larger boat than any of the boats 
of the Jeff. Davis, or smaller ? 

A, Larger. 



35 



Q. How do you know they were armed ? 
A. I believe they used to conceal the 
arms about them, because I saw them take 
them from different places about them. 
The second lieutenant'showed me where he 
concealed his arms underneath his stocking, 
in his shoe. His knife was in a place 
made for it between his pants and drawers, 
by the calf of his leg. I saw him take the 
knife from there, and then he told me that 
was where he carried it. 

Q. Where did you see that ? 
A. On board the Jeff, Davis. 
Q. Prior to the capture of the Enchant- 
ress? 

A. I cannot say as to that. 
Q. At what time did Captain Devereux 
and the mate of the Enchantress come on 
board the Jeff. Davis ? 

A. Between seven and eight o'clock in 
the evening. 

Q. Were you ordered below when the 
vessel came up ? 
A. I was. 

Q. At what time were you ordered 
below? 

A. Sometime before they came up to us ; 
I should say they were four or five miles 
off, when we were ordered below. 

Q. And you were kept below until what 
time ? 

A. Until they had captured her, I 
looked up through the skylight and saw 
them haul down the French flag and hoist 
what they called the Confederate flag; I 
never saw that flag before in my life. 

Q. And then you were allowed to go on 
deck, after the capture? What do you 
mean by after the capture ? after the 
vessel sailed ? 

A. No ; after they had taken charge of 
her. 

Q. After who had taken charge of her ? 
the lieutenant? 

A. Yes, sir ; and bis crew from the brig 
Jeff. Davis. 

Q. Did you see the lieutenant and his 
crew return to the Jeff. Davis ? 
A. Oh, yes. 

Q. When did they return? 
A. They returned with Captain Deve- 
reux and Mr. Page, and, I think, Captain 
Devereux's son. 

Q. In whose charge was the vessel when 
they returned ? 

A. In the charge of the prize crew. 
Q. Did you see the prize crew leave the 
Jeff. Davis ? 

A. Yes, sir. I saw the second lieuten- 
ant, Mr. Stewart, make out the list ; I sat 
by the side of him at the time, on board 
the Jeff. Davis when he made out the list 
for them to go. 



Q. Do you recollect the names in laat 

list?" , 

A Yes sir; there sits a man whose 
name was 'first on the list, [pointing to the 
prisoner.] 

Q. How many men went? 
A. Five, with himself. 
Q. Did they return to the Jeff. Davis ? 
A. No, sir. . .1, X , 

Q. What time in the evening was that i 
A. Somewhere about seven o'clock; it 
might have been before, it might have been 
after. I cannot say exactly. 

Q. Do you recognize William bmith as 
that man ? 
A Yes sir. 

Q." Did you see him frequently on board 
the Jeff. Davis while you were there ? 

A. Of course I did. I was in his com- 
pany all the time, sometimes near, some- 
times not. We were always as near as the 
business of the vessel allowed. 

Q Give us a little notion of the charac- 
ter of the armament of this vessel ? How 
many guns had she. . 

A. She had an eighteen pound pivot 
gun that went around, worked any way. 
amidships, and she had four other guns, 
two on each side. 

Q. Did you see any pistols ? 
A She had also a rack down below in 
her cabin of double barrelled guns. I can- 
not say how many there were ; there might 
be fifty for all I know, I should not say 
there was much less than fifty. . 

Q. The Enchantress and the Jett. Uavis 
parted company about eight o'clock in the 
evening ? 
A- Yes sir. 

Q.' That was the last you saw of the En- 
chantress ? . 1 • -Dl -1 

A. Yes, sir, until she arrived m Phila- 
delphia. , , 1 • 
Q. How did you get to Philadelphia ? 
A. I came here in the ship Mary 
Goodell. 
Q. With your captain ? 
A Yes, sir, with Captain Fifield. 
q" And with Captain Devereux and Mr. 
Page ? 

A. Yes, sir. 
• Cross-eicammefZ by Mr. Whartok. 

Q I think you said it was the second 
lieutenant that made out the list of the 
prize crew ? 
A. Yes, sir. 

Q. He wrote their names down on a 
piece of paper ? 

A. Yes, sir, he wrote their names down. 
Q.' Did he hand that paper to Smith ? 
A. I do not know what he did with that 
paper ; he went away from me then. 
Q. With the list in his hand ? 



36 



A. Yes, sir. 

Q. Did you see Smith leave with the 
men under him ? 

A. Yes, sir, I saw him go away. 

Q. How near were you to him while he 
was making out this list and piclcing out 
the prize crew ? 

A. We were sitting side by side. 

Q. Then you heard what he said to 
Smith, I presume ? 

A. No, he only picked the crew out him- 
self. I saw him pick out the crew for the 
other schooner, also. 

Q. That I am not asking about; but just 
this particular thing. What direction did 
he give Smith ? 

A. He did not give him any directions 
that I heard. I only saw him make out 
the list. 

Q. Then you did not hear him or see 
him direct Smith to go on board? 

A. No, sir. 

Q. How long afterwards did that occur? 

The AV'iTNESs. After when ? 

Mr. AViiARTO.v, After he made out the 
list. 

The Witness. Before Smith went on 
board the vessel ? 

Mr. Wharton. Yes, sir. 

The WiTXEs.s. I do not know as to that. 
It might be an hour or two hours. 

Mr. Wharton. I thought it occurred 
probably at the same moment, from the 
manner you described it. 

The Witness. While they were board- 
ing, he made out the list of the prize crew 
who were to go. 

Q. Then they were selected beforehand, 
and an hour or two afterwards they left? 

A. Yes, sir. 

Q. Then you were not with the second 
lieutenant when he sent them on board ? 

A. No, sir. 

Q. Did you know where the Enchantress 
was to be taken to ? 

A. It would be impossible for me to tell 
where they were going to. I cannot tell 
you. I heard on board the vessel that they 
intended to take her to some Southern 
port, Charleston or Savannah. 

Q. Do you know of any messages being 
sent along with them, or letters, or any- 
thing ? 

A. No, sir. I saw papers sent 

Q. What papers ? 

A. I do not know what they were. 

Q. What do you mean by " papers ?" 
newspapers ? 

A. No ; not newspapers, but some 
papers that they had, that they took with 
them. 

Judge Cadwalader. You mean the 
prize crew took certain papers with them ? 

The Witness. Yes, sir. 



Mr. Wharton. From whom were those 
papers received by the prize crew ? 

A. I do not know. They used to handle 
the papers of every vessel they took, from 
one to the other. I did not take particular 
notice. 

Q. But you know the fact that certain 
papers were taken by the prize crew on 
board the Knchantress ? 

A. Yes, sir. 

Q. Where did you sleep while you were 
on board the Jeff. Davis ? 

A. In various places. I slept in the 
cabin, I slept in the hold, and I slept on 
deck. 

Q. According to the necessities of the 
occasion ? 

A. No, just as I chose. 

Q. Then you had an option of sleeping 
pretty much all about ? 

A. I had a bunk in the cabin. It was 
taken away from me, and I was told to 
sleep in the hold ; and one night I slept on 
deck. 

Q. You got your meals regularly ? 

A. Yes, sir. 

Q. How many days were you there ? 

A. From the 6th to the Uth of July. 

Mr. AsHTON. What did you eat on board 
the Jeff. Davis ? 

The Witness. Our own provisions 
principally — the provisions that were taken 
from the different prizes. 

Mr. Wharton. Do you happen to know 
who was the captain of the Jeif. Davis? 

A. Captain Coxsetter, I believe. 

Q. Do you know the list of officers that 
she had ? 

A. I can tell you some. Postell was 
first lieutenant, and Stewart second 
lieutenant. 

Q. Were there any other officers that 
you know of? 

A. There was a doctor; I forgot his 
name. 

q. Was it Babock ? 

A. Yes, that was it, 

il, Were there any other officers ? 

A. They used to have petty officers,- 
such as boatswain and stewards, but I do 
not know their names. 

Q. They had the usual petty officers on 
board a vessel ? 

A. Yes, sir ; they termed them such, 1 
believe. 

Q. Had they a sailing master ? 

A. 1 do not know. 

Q. AVho navigated the vessel ? 

A. I do not know. I used to see all 
hands at work in navigation. 

Q. But you do not know who directed 
her, whether it was the captain, first lieu- 
tenant, or some other officer ? 

A. I do not know. 



37 



Q. Had the marines a captain or com- 
mander? 

A. Yes, sir ; there was a captain and a 
lieutenant of marines onboard. 

Mr. Harrison. Can you mention the 
names of the five persons who you stated 
•were put along with Smith, on board the 
Enchantress, as a prize crew ? 

A. I can give you the names, I think. 

Mr. Wharton. When did you happen 
to make that memorandum that you are 
looking at? 

The Witness. I have memorandums 
from the time I was taken. 

Mr. AVharton. Then it is contempo- 
raneous history — very valuable of course. 

The AViTNESs, (after consulting a memo- 
randum book). The prize crew consisted 
of Smith, Lane, Bradford or Radford, (I do 
not know which it was,) and two others 
whose names I do not recollect. 

Mr. Harrison. AYere there five besides 
the defendant, or five in all ? 

The Witness. There were four besides 
Smith, he made five. 

Thomas B. Patterson called and af- 
firmed, and examined by Mr. Ashton. 

Q. You are deputy marshal of this dis- 
trict ? 

A. Yes, sir. 

Q. How long have you been deputy 
marshal ? 

A. Since the first of May, I think. 

Q. Do you recollect arresting Smith, the 
prisoner at the bar ? 

A. I do not recollect the name. I recol- 
lect arresting five prisoners ; I think Smith 
was one of them, 

Q. Upon a warrant issued by whom ? 

A. By Mr. Heazlitt, United States Com- 
missioner. 

Q. Did you make the arrest yourself per- 
sonally ? 

A. Yes, sir. 

Q. AVhere was the arrest made ? 

A. At the Navy Yard. I took them 
from on board a vessel. 

Q. AVhat vessel ? 

A. It was the Albatross. 

Q. Where did you find the prisoners ? 

A. They were down below when I went 
on board the vessel, and they were ordered 
up by the commander of the vessel. 

Q. AA''ere they in irons ? 

A. They were in irons. 

Q. To whom did you show your warrant 
when you first went on board the vessel. 

A. The commander. I told him I had a 
warrant for the prisoners. 

Q AVho pointed them out to you as the 
prisoners ? 

A. They were brought up and put into 
carriages in irons. I did not disturb the 
irons. 



Q. Where did you take them ? 

A. To Aloyamensing prison and lodged 
them there. 

Q. AAliere was the Albatross lying at 
that time ? 

A. Lying at one of the wharves of the 
Navy Yard, right alongside the wharf? 

Q. AVas she moored to the wharf? 

A. Yes, sir. • 

Q. Had you any conversation with the 
captain of the Albatross in regard to them 
in their presence ? 

A. Not in the presence of the prisoners. 

Q. Had you a conversation before they 
were brought before you ? 

A. No, sir. 
Cross-examination hy Mr. AA'harton. 

Q. You say you arrested these men, and 
they were in irons ? 

A. Yes, sir. 

Q. Is that what you would say was an 
ordinary arrest, to take a man who was al- 
ready in irons and in the custody of some- 
body else ? 

A. I do not know. I took them just as 
they were. 

Q. Be kind enough to describe to the 
jury the character of the irons ; how were 
they fastened ? 

A. I think they were ironed, hands and 
feet. 

Q. Describe the character of the irons, 
or manacles, or whatever you call them ? 

A. I think the irons on their wrists were 
the ordinary cuffs with a bar ; and on their 
feet they had a short chain, just so that 
they could move about and walk. 

Q. How was the chain fastened? To 
either or both legs ? 

A. To both legs. 

Q. How fastened? 

A. There was a band that went around 
the ankle and then a chain connecting the 
two bands. 

Q. AA'hat was the weight of these irons ? 

A. They were not very heavy. I do not 
know what the weight was. They were 
light. 

Q. Have you got them ? 

A. No, sir. 

Q. AVhat has become of them ? 

A. I sent them on board the vessel 
again. 

Q. You did not preserve them ? 

A. No, sir. They belonged to the vessel. 

Q. How did you know that ? 

A. The captain told me so. He asked 
me to send them back immediately. They 
were sent back. 

Q. AVhen you went on board the vessel 
these men were down in the hold ? 

A. Yes, sir. 

Q. Did you go down there ? 

A. No, sir. 



38 



Q. You say they were ordered to be 
brought up : were they able to walk ? 

A. Yes, sir. The chain was long enough 
to allow them to walk. They walked from 
the vessel and got ashore. 

Q. Do you know how long they had been 
confined in the hold thus ironed ? 

A. No, sir. I do not know anything 
about that ? 

Q. Where is the captain of the Alba- 
tross ? Do you know ? 

A. I do not know. 

Q. How long ago was this? 

A. 1 cannot tell you without referring 
to the dates in the marshal's office. 

Mr. Wharton. I suppose the warrant 
is here on file. That would give the date. 

The Witness. The warrant would give 
the date ; but it is not here. I believe it 
is down at the prison. 

Q. AVhat is the name of the captain of 
the Albatross ? 

A. I do not recollect his name. 

Q. He is an officer of the United States 
Navy ? 

A. Yes, sir. 

Mr. AsuTON. CaptainPrentiss was cap- 
tain of the Albatross at that time, and I 
presume is now. 

Mr. Wharton (to the witness.) Do you 
know where the Albatross is now ? 

A. 1 do not. 

Q. Do you know any of the other officers 
of the Albatross? 

A. No, sir. 

Q. How soon after her arrival, did you 
go on board and receive these men ? 

A. I think it was two or three days after 
the arrival of the vessel. I am not certain 
as to that. 

Q. Who made the oath for the issuing of 
the warrant ? 

A. That I do not know. The oath, 
though, was made here. 

Mr. Wharton. It ought to be among 
the records here. 

Mr. Ashton. I will see where it is. I 
presume Mr. Heazlitt has it. 

Mr. Wharton (to the witness.) Was it { 
necessary to lift the chain to enable the j 
men to get into the carriage ? i 

A. It was necessary to lift them into the 
the carriage ; but they walked freely. 

Q. What was the length of the chain ? 

A. About twelve inches, perhaps a little i 
longer. I did not take very particular j 
notice of the length. They could move ! 
about freely, though. ■ 

Q. Do you know whether the Albatross 
brought along with her any papers that 
were taken with these men ? 

A. I do not. 

Q. You do not know whether the cap- 



tain of the Albatross had possession of 
papers belonging to them ? 

Q. I do not know anything about that. 
I merely made the arrest. 

Charles W. Page recalled and ex- 
amined by Mr. Ashton. 

Q. Do you know where the i^nchantress 
is at present. 

A. I believe she is on her way from St. 
Jago to some Northern port. 

Q. Were you in Philadelphia when she 
sailed from this port ? 

A. I was. 

Q. When did she sail from Philadelphia ? 

A. I think it was the 22 nd or 2ord of 
August, I cannot state positively. 

Q. Were you present when she sailed ? 

A. Yes, sir. 

il- Did she go down the river ? 

A. Yes, sir. 

Cross-exammed by Mr. Wharton. 

Q. You say the Enchantress sailed from 
this port on the 22d of August for some 
foreign place. Were you here at the 
time '! 

A. I was. 

Q. How did she get here: was she 
brought up by the Albatross ? 

A. That is more than I can tell you. 

Q. How long had she been here when 
you knew she was here ? 

A. I cannot tell. 

(}. Then how do you happen to know 
that she sailed from here just on the 22nd 
of August, and know nothing else about 
her ? 

A. I was telegraphed to at the place 
where I belong to, to come on here and go 
in the vessel. 

Q. When you came here you found her 
here ? 

A. Yes, sir. 

Q. You do not know that she was 
brought here by the Albatross ? 

A. I cannot swear to that. I have read 
that ; that is all I know about it. 

Q. You had not been here at all before 
that ? 

A. I had not. 

Mr. Wharton. Of course, that accounts 
for you not knowing what occurred in the 
interval. 

Mr. Ashton. Did you see the log of the 
Enchantress when she sailed. 

The Witness. The log was on board. 

Mr. Ashton. What log ? 

'J'he Witness. The log book that was 
originally on the Enchantress. 

Mr. Ashton. I now offer in evidence 
the Appendix to the United States Statutes 
at Large for the 37th Congress, 1st Session, 
containing the various proclamations of the 
President of the United States in relation 
to the rebellion. 



39 



Mr. Wharton. Certainly. 

Mr. AsHTON. We rest here for the 
present. 

Mr. Wharton. I should like to have 
the date of the affidavit from the warrant, 
as part of the case of the United States. 
A witness was on the stand, who, by refer- 
ence to a document in court, could fix the 
date. Mr. Patterson said he could not 
speak of the date without reference to the 
warrant. 

Judge Cadwalader. Is your sole pur- 
pose to get the date ? 

Mr. Wharton. Not my sole purpose. 
It is to get the date and also see whose 
affidavit it was, and perhaps it may lead to 
an inquiry why that person is not here. I 
do not know who made the affidavit. 

Mr. AsHTON. Nor do I. I know that 
the arrest was upon an affidavit. Whose 
affidavit it was, I do not know. Mr. Whar- 
ton can prove that as well as we can. 

Judge Grier. Can that be material in 
any possible point of view ? 

Mr. Ashton. I do not see how it can 
be. 

Judge Grier. I suppose if that paper 
is found at any time, it will be brought 
here and handed to the counsel. 

Mr. Wharton. That will satisfy us. 

Mk. O'Neill opened the case for the de- 
fence, as follows : 

With submission to your Honors, Gentle- 
men of the jury, it is my part in this case to 
lay before you the answer of this prisoner, to 
the very grave and serious charge of which 
he stands indicted ; and in doing so, I shall 
not prolong this trial by any lengthened open- 
ing, but shall briefly state to you the facts 
upon which we shall rely, in asking you here- 
after for a verdict of not guilty. 

As the learned Gentleman for the Govern- 
ment has told you, this prisoner stands indicted 
for the crime of piracy. The definition of 
that offence you learned as the case, on the 
part of the Government, was opened. We 
shall assume it for the purposes of this case, 
and shall hereafter contend before you, that 
the facts, submitted on the part of the prose- 
cution as well as those to be submitted on the 
part of the defence, remove the case of this 
prisoner outside the scope and terms of the 
crime, as defined by the District Attorne3\ 

The learned gentleman has told you the 
ingredieutsof the offence, and those requisites 
of proof to be established, on the part of the 
Government. I need not tell you that they 
must be satisfactorily made out, and that fail- 
ing in any essential particular, it will be our 
duty to ask, and yours to render, a verdict 
of not guilty. Piracy, as you have heard, 
and as we assume it to be, is any violent 
depredation on the high seas with a felonious 
intent. To this definition, gentlemen, it will 
be your province to apply the facts of the case. 



There must be a violent depredation coupled 
with a felonious intent. I need not tell you, 
gentlemen, the meaning of a felonious intent. 
The world knows, — the desire that prompts the 
thief to plunder, and impels the highwayman 
to strip his victim. With him there is no dis- 
tinction of person, age, or sex. The strong, 
the weak, the old, the young, are all alike to 
him : his desire of theft hurries him on to 
acts of plunder, and discrimination is alone 
made, in the riches of the wayfarer. So, 
gentlemen, it is with the pirate. He roams 
the sea, the enemy of this wide world's family ; 
nations, to him, are alike ; flags and national 
ensigns, to him, have no character ; his heart 
loves and seeks but plunder, and his strong 
hand takes it away. Such, gentlemen, in our 
idea, is the pirate, and such to you must ap- 
pear the prisoner, before you can convict him 
as he stands charged. 

We shall, gentlemen, contend before you 
that the prisoner had not and did not in any 
way, share, at the time of this occurrence, 
the animus furandi, as the law terms it, that 
guilty intent, that disposition for theft which 
is the very heart of this indictment, and in 
the absence of which he must be acquitted. 
To this part of the case, though not altogether, 
our defence shall be directed. 

You know, of course, the diEBculties out of 
which this case springs, and I do trust that 
in laying before you the defence of the pri- 
soner, we shall not scandalize your patriotism, 
by establishing, as a fact in this cause, the 
present political state of the South. Un- 
fortunate and wrong, deeply wrong, as that 
position may be, we shall have, though con- 
demning and deploring it as intensely as j'ou, 
to contend that, in this issue, and in this 
the prisoner's hour of peril, it must be his 
shield and protection. As a necessary part of 
ourcase, we shall prove to you, gentlemen, that 
there exists such a thing as a Southern Confed- 
eracy ; that there is South a government in fact, 
issuing letters of marque, and that they were 
duly granted to the command under which 
this prisoner served, and in obedience to which 
he had been engaged when arrested on the 
the high seas, and brought to Hampton Roads. 

You will ask me what relation has this with 
the case before you. I shall tell you, gentle- 
men. The prisoner was a citizen of the South ; 
he owed allegiance to his State, and that alle- 
giance was to be promptly rendered or penal- 
ties almost as heavy as the one that now 
hangs over him, were soon to follow. He was 
forced to serve his State in a military or naval 
capacity ; to enlist as a soldier on land, or go 
on board as a mariner. There was no volition 
left for him, no aid to help his loyalty ; the 
protecting arm of the Federal Government 
reached not him, or his home ; and to delay 
obedience to the laws of his own State, would 
be but to have his property sequestered, him- 
self imprisoned, or banished from those he 
loved, and who looked to him for aid and 
protection. Being forced to serve, he went 
on board the Jeff. Davis, for he was cradled 



40 



on the sea, and followed its life, from his 
earliest childhood, preferring this service as 
more consonant with his habits and education. 
Whilst thus, gentlemen, yielding forced obe- 
dience, whilst thus acting under the order, 
command, and authority of the South, he was 
taken by the Albatross. 

Gentlemen, is he the pirate, the hostis 
humani generis, who roamed the sea without 
flag or nation, ready to and willing to strip 
the first victim that might cross his way? Is 
he the public robber on the sea, who draws his 
knife as he meets his victim, and says "yoiir 
property or your life " irrespective of person, 
age, or nation? No, gentlemen, the mind that 
prompts the pirate, — and you know the mean- 
ing of the term, — never urged him to the act 
for which he stands indicted. He must be 
proved as having this intent, ere he be found 
guilty. You may look upon him as having 
erred in judgment. Be it so. That error is 
not indictable, nor has indiscretion ever had 
a place in the calendar of crime. To be 
amenable to this tribunal, the prisoner must 
have liad freedom of thought to reason, free- 
dom of judgment to decide, and freedom of 
will to act in accordance with his own decree. 
The heart must err and show that error in 
some act, ere this law of nations seeks its 
vengeance at your hands. 

If this prisoner has acted with an honest 
confidence in this commission of the South, 
as we shall contend he has, or if forced to 
act he went on board this vessel, — and this the 
facts will show, — he must go hence untouched 
as their Honors will tell you. If owing al- 
legiance to the South, and that allegiance was 
to be rendered in military or naval service, 
and this prisoner being forced to one or the 
other, assumed as more congenial to his 
habits, I might say his cradle, the duties of 
the latter, you cannot, gentlemen, under the 
laws of your country, convict him. He is 
not the pirate whom the laws would punish 
with death, because his heart is free of the 
malice whicli gives the crime its infamy and 
its punishment. 

We shall show you, gentlemen, that the life 
of the prisoner has been such as to repudiate 
the offence charged. The history of himself 
and his little home shall be leaf after leaf un- 
folded, yes, from the moment when, thirty 
years ago, he sought the sea as an humble 
pilot, to this very hour when he stands 
indicted of piracy, on the very waters where 
his reputation was made, and his name re- 
spected. After we shall have done this, gen- 
tlemen, we shall call on you to say that he is 
not the public enemy who went on board this 
vessel, to plunder indiscriminately, the 
Frenchman, the Englishman, or any other 
citizen of the world; but that forced there, he 
acted under a compelling and inexecrable au- 
thority, which must now be his defence, and 
plead his excuse. 

The different proclamations of the Presi- 
dent, as well as those of Mr. Jeff"erson Davis, 
will be laid before you, and fully will you hear 



of the present condition of the South. Want 
of jurisdiction in this court to try this alleged 
offence will also, gentlemen, be urged before 
you and their Honors. 

I believe I have now opened the case of the 
defence as advised, and I shall leave it to be 
hereafter discussed by my learned colleagues, 
who are, and I hoj^e with success, to argue it 
before you. 

Mr. Harrison. Before calling any wit" 
nesses, we propose, if your Honors please 
to present as evidence in this case, because 
they are matters of public notoriety and 
part of the history of the country, the Con- 
stitution, proclamations, and laws, and 
various proceedings of what is called the 
Southern Confederacy, as contained inthes 
three volumes of a book published in the 
City of New York, and entitled " Moore's 
Rebellion Record." 

Mr. AsHTON. For what purpose ? 

Mr. Harrison. To show that there was 
such a Constitution, and that there were 
such laws, proclamations, and proceedings 
as they purport to be. I do not present 
them as evidence of the authority of the 
Southern Confederacy to make or to issue 
any such laws, proclamations, and Consti- 
tution, but simply as part of the res gestce 
of this case to go before the jury and 
before your Honors so as to permit us to 
be heard in regard to them. 

Mr. AVhartox. For the purpose of 
showing the existence of a government de 
facto, claiming to be such and to administer 
justice, and to regulate those persons actu- 
ally within its jurisdiction, whether rightful 
or wrongful that jurisdiction happens to be. 

Mr. Harrison. And to show the quo 
aiumo with which this act was done. 

Mr. Wharton. Your Honors are no 
doubt aware, that, there are consequences 
resulting from the facts, if the evidence is 
admitted, which it is unnecessary now to 
discuss, but, which will be discussed in an 
after stage of the cause. "VVe are simply 
stating now the points of fact that we de- 
sire to prove and the purpose of laying 
those facts before the court and jury. 

Mr. Harrison, I stated to your Honors 
the day before yesterday, that I had made 
every possible effort to obtain that evidence 
in an authentic shape ; but, owing to the 
extreme difficulty, indeed, I may say, the im- 
possibilty of postal communication with the 
only source from which that information 
could be obtained, we were compelled to 
resort to this as the only possible evidence 
of these matters within our reach. 

Judge Grier. Do the gentlemen repre- 
senting the government object ? 

Mr. AsiiTON. Yes, sir, we object. 

Judge Grier. On what grounds? 

Mr. AsHTON. On two grounds; first. 



41 



that there is no evidence that this book 
contains correct copies of these documents ; 
second, that it is not pertinent to the issue, 
because it would not either excuse or jus- 
tify the acts proved to have been done by 
the defendant. 

Judge Grikr. Suppose it is all the ex- 
cuse or justification they have g-ot, have 
they not a right to show it and have the 
court pass upon it ? 

Mr. AsHTON. I merely make the ob- 
jection, and state the grounds on which it 
rests, and ask your Honors to pass upon it. 

Judge (tRIER. You want us to decide 
what may l)e the grave question of the cause, 
on a mere point as to the admission of testi- 
mony. J am inclined to admit the testi- 
mony if it is all relevant to the defence. 
Whether that defence is a good one or not, 
is to be considered afterwards. 

Mr. Kellev. May it please your Honors, 
as 1 understand the ofl'er now, it is to ])ut 
in a certain book called -'The Rebelliou 
Kecord," which, from my general recollec- 
tion contains a large amount of poetry. 

Judge Oauwai,adkr. 1 do not under- 
stand the offer in that way, but it is to 
submit particular parts of the book. 

Mr. Wharton. AVe propose to offer 
specific parts. The poetry we leave to the 
other side. 

Mr. Kelley. We would rather go to a 
purer fountain, even for that. 

Judge Grier. 1 suppose it is proposed 
to give historical evidence of historical facts. 

Mr. Wharton. 'J'hat is it; and it hap- 
pens to be found in a particular book. It 
may be damaged by intercourse with 
poetry, we do not know. We only offer 
what purports to be official documents, — 
as official as anything from such a source 
can be. We do not offer the book in the 
mass, but merely as containing a list of 
those public documents, which we can best 
reach m this form — no better for being in 
the book, perhaps no worse. 

Mr. Harrison. If there is any other 
and more authentic publication of these 
facts, we shall accept it from the learned 
counsel on the other side. 

Judge Cadwalader. Whatever docu- 
ments are offered, I think ought to be par- 
ticularly indicated and read We cannot 
consider such publications as this in a 
lump. Or, if counsel do not wish the 
trouble of reading them aloud, the page 
and line may be indicated, so that the 
Court may examine the various documents. 
We cannot understand a book of that sort 
to be in evidence, without the parts which 
counsel desire to consider being particu- 
larized. It would be inconvenient to both 
sides. 

Mr. Harrison. I want first to present 

4 



I the Constitution of the Southern Con. 
federacy, and the Secession Ordinances of 

! the Southern States. 

j Judge Grier. 'I'he offer is to show the 
Constitution of the so-called Southern 

I Confederacy, and the Secession Acts of the 
different States. 

[ Mr. Harrison. Yes, sir. 

I Judge Grikr. I am disposed to admit 
it. You cannot get absolutely authentic 

I copies of those documents. They are re- 
garded as historical facts, and you must 
take the best historical evidence you can 
get. Indeed, they are referred to in the 

j President's proclamation already produced 
by the prosecution. It is now proposed to 

! offer them as historical facts. We never 

I decide the value of evidence on such a 

I point. If it tends to prove the defence, 

I (whether that defence be good or bad,) we 

I think the testimony should be received. 
We should prefer to have authentic copies 
of these documents, properly certified ; but 
that being impossible, and the facts being 
historically true, there ought to be some 
way of getting at them. I do not know 
what effect they may have. We shall have 
to consider that after the documents are 
before us. But, as the case now stands, I 
think this offer ought to be admitted. 

Mr. AsHTON. My objection did not ap- 
ply to the form in which the documents 
are, but to the documents themselves. I 
think if those documents themselves were 
here properly certified, they would not be 
evidence to justify the crime. 

Judge Grie^.. That question is not de- 
cided. A man's defence ought to be the 
best he can make. If the testimony tends 
to prove it, it ought to be received ; and 
then, whether that can be a justification or 
not is afterwards the question of the case 
to be decided ; but you must have the case 
before you, before you can decide it. 

Mr. AsHTON It was decided in Hutch- 
ing's case tried in the Circuit Court of the 
United States, before Chief Justice Mar- 
shall at Richmond, in ISIT, (1 Wheeler's 
Criminal Cases. .543,) that on a trial for 
piracy, a commission as a privateer from a 
government not recognized by the United 
States, cannot be received in evidence as a 
valid commission, but only as a paper found 
on board the vessel, and cannot be received 
to justify piratical acts. 

Judge Grier. You can find hundreds 
of cases, both civil and criminal, where the 
essence of the case has been decided on the 
admission of testimonj'. I only say, as a 
matter personal to myself, that I never do 
it. If the testimony offered is proof of the 
defence urged, I always admit it, and de- 
cide on it when the wholecase is presented. 
1 know you will find hundreds of cases to 



42 



the contrary. I do not act on authority 
when I so decide, but on my own particular 
method of doing business, which I think is 
just and right. 

Mr. AsHTON. My impression was that the 
authorities were in a different direction, 
that it was first to be seen whether the 
defence would be a good defence, before 
testimony would be admitted. 

Mr. Wharton. I will give yoar Honors 
some documents by date and specific refer- 
ence, that we offer ; first, the proclamation 
of President Lincoln, of April 15, 1861, to 
be found on page 301 of " Upton's Mari- 
time Warfare and Prize." 

Judge Cadwalader. Excuse me for sug- 
gesting that you have that in a more au- 
thentic form. 

Mr. Wharton. I know the District 
Attorney has offered it, I merely allude 
to it now in connection with other docu- 
ments in the same book. We next offer 
the proclamation of Jeflerson Davis, dated 
April 17th, 1861, which is the proclama- 
tion under which these letters of marque 
and reprisal were issued. That is to be 
found on page 302 of Upton's Work. That 
was followed two days afterwards by a se- 
cond proclamation of the President of the 
United States, dated April 19th, 1861. 
Then fallowed the proclamation of Presi- 
dent Lincoln of April 27th ; and then the 
proclamation of Comodore Pendergast, of 
April 30th. 

Judge Cadwalader. Notification, you 
had better call that. 

Mr. Wharton. It is a notice of the 
blockade by Commodore Pendergast on the 
30th of April, referring to the President's 
proclamation of the 27th, and therefore 
properly a notification, undoubtedly. Then, 
next in order is the proclamation of Presi- 
dent Lincoln of the 3d of May. Next, is 
the proclamation of Queen Victoria. We 
give that in evidence to show the state of 
hostilities in the apprehension of the civil- 
ized powers of the world, as existing be- 
tween the so-called Confederate States of 
America and the United States of America. 
It is to be found at page 3U4 of Upton. 
The date is the 14th of May, the District 
Attorney tells me. Then 1 offer in evi- 
dence, simply as proof of the facts 1 have 
just mentioned and other facts connected 
with the subject, Twiss' Law of Nations, 
the London edition, published in the present 
year. 

Judge Cadwalader. Would you not pre- 
fer reading that as authority in the course 
of the argument ? 

Mr. Wharton. AVe offer it as historical 
evidence of a state of facts existing in this 
country. Your Honors will see how it 
bears on the case as part of its general 



complexion, showing the manner in which 
the state of things in this country is viewed 
by other nations. On pages 56 and 57 of 
Twiss' Work — I am now merely making an 
offer and describing what the ofi'er is— will 
be found a historical statement of the oc- 
currences in this country, and the dates of 
the different secession ordinances of the 
States, and of the Constitution of the so- 
called Confederate States. The provisions 
of these ordinances and this constitution 
are historically mentioned and treated in 
this book, and the facts alluded to as ex- 
isting facts in the history of the world. 

Judge Grier. You may offer that book 
as the best evidence you can get of the 
dates of certain proclamations and certain 
ordinances of these men ; but we cannot 
receive as authority his opinion of the facts 
or the opinion of people in Europe who do 
not care a fig about the matter. 

Mr. AsHTON. If I remember Twiss's book 
aright, it announces the fact that certain 
secession ordinances were passed at certain 
times. 

Judge Crier. We all know the fact that 
they were passed. 

Mr. Wharton. The secession ordinance 
of South Carolina is dated December 20, 
1860. Then the Constitution of the so- 
called Confederate States of America for 
their provisional government, is dated Feb- 
ruary 8, 1861. Then, 1 offer this book as 
proof of the fact, which perhaps could only 
be proved historically in some such way, 
that Mr. Jefferson Davis, whose proclama- 
tion 1 have put in evidence, was inaugu- 
rated as President of the so-called Southern 
Confederacy on the 18th of February, 1861 
— prior to the date of the proclamation 
that 1 have given in evidence ; I think the 
locality was Montgomery, Alabama. 

Mr. Kelley. We agree that that book 
and the " Rebellion Record" may fix the 
date of the various secession ordinances. 

Mr. Harrison. If your Honors please, 
there are sundry proclamations which were 
issued by the Southern Confederacy after 
its formation, and some which were issued 
by the various States composing that Con- 
federacy, from time to time, which I desire 
to offer. If your Honors insist on our 
giving you a note of these documents regu- 
larly, we must ask a little time in order to 
enable us to ransack this " record" and fur- 
nish the dates. It is proper for me to state 
that that would have been done, and I 
would not stand here now ottering this evi- 
dence in this wholesale manner, but that I 
was under the impression that this '• record" 
would be considered as in evidence, to be 
taken up, and referred to, and commented 
on by counsel on both sides, in part or in 
whole as might be deemed necessary. 



41 



Judge Cadwalader. But you do not now 
ask to put it on that footing. You ask to 
put it in as evidence. It is very likely that, 
if nothing had been said on the subject, the 
counsel on both sides might have referred 
to this as matter of public notoriety and 
conceded all that you ask ; but you desire, 
with prudent caution, to have the matter on 
which you rely particularly cited. It is to 
promote your own wishes, Mr. Harrison, 
that if you desire that, you must make your 
offer particular. 

Mr. Kkllky. I think that the opening of 
my learned brother (Mr. Ashton,) exhib- 
ited just such a desire on our part, and I 
tried to make my friend on the other side 
understand that such was our desire. 

Judge Grikr. Counsel may refer histori- 
cally to any book that shows the date when 
particular acts were done. 

Mr. Kkllky. Originally, we did not feel 
disposed to file an agreement that that 
might be done, and we do not now feel dis- 
posed to admit that that which is not legal 
evidence should be admitted ; but we were 
disposed to take the great facts before the 
country from the best sources we could get 
them. I have, myself, relied largely upon 
this very " Rebellion Record" which is be- 
fore us. Twiss's book appears to have 
been compiled with great care — I mean as 
to its facts, not as to its theories of law. 
As to its facts, it seems to have the dates 
accurately. 

Mr. Wharton. I take it that where you 
refer in the course of a case historically to 
historical facts as bearing on the case, you 
can only refer to them properly as matters 
of evidence bearing on the case ; and as 
there seemed to be a little misapprehension 
between the other gentlemen in this case, 
(in which I was not a partaker at all.) I 
thought I would put our proposition in a 
formal shape by the offer of the evidence 
which has been received ; and it seems to 
me to be enough to fill up the general out- 
line of the case, and then the other docu- 
ments which are subsidiary — the acts of 
the ditfereut States, the warlike proclama- 
tions, <fcc. — we may perhaps leave for refer- 
ence as we go along. 

Judge Grikr. They are matters of very 
little importance. You have the great 
facts. 

M r. Wharton. We have the great fact 
of a government de facto in the South, 
and especially the proclamation authorizing 
these letters of marque and reprisal ; and 
as this was a charge of piracy, that procla- 
mation seemed to me to be the great docu- 
ment in the case. 

Judge Grikr. Certainly enough to raise 
your defence. 

Mr. Wharton. Enough to raise the ques- 



tion whether this man is or is not a pirate 
or robber. 

Mr. Harrison. I am very sorry to be 
under the necessity of troubling your Hon- 
ors again ; but I want to know, and with 
the permission of your Honors, I intend to 
know, how I shall stand when I come to 
sum up for the defence. I desire to know 
whether, under the view announced by your 
Honors now, I shall be at liberty to com- 
ment on the sequestration and confiscanon 
and militia laws of the Southern Con- 
federacy as I shall find them laid down in 
this " Rebellion Record." If I cannot 
have that permission without specially re- 
ferring to them now, I ask to be allowed a 
few moments until I can specify such por- 
tions of this book as I desire to refer to. 
I do not intend to be met again, as I have 
been met to day, with objections that I did 
not anticipate. 

Judge Cadwalader. I do not think you 
have met with any embarrassment. 

Mr. Harrison. Certainly not on the part 
of your Honors. 

Judge Cadvvaladrr. Nor any from 
counsel that need cause you any difficulty. 
Although it would have been more conve- 
nient if these things had been prepared 
beforehand, it is perfectly agreeable to the 
Court that you should sit down now and 
take all the time you want to do what you 
suggest. 

Mr. Harrison. I will select the docu-, 
ments which I propose to offer. 

Judge Cadwalader. If it is preferred 
the gentlemen can defer this part of the 
case until to-morrow morning. 

Mr. Harrison. That will be very satis- 
factory. 

Judge Cadwalader. In the mean time 
you can go on with your oral testimony. 

Edward Rochford called and sworn, 
and examined by Mr. Harrison. 

Q. Where were you born ? 

A. In England. 

Q. In what State were you living when 
you joined the service of the Southern 
Confederacy ? 

A. Georgia. 

Mr. AsHTON. Excuse me for interpos- 
ing ; but it is proper for me to state to the 
Court that this is one of the defendants 
who have been indicted for the same crime 
in another bill. 

Judge Cadwalader. Mr. Rochford, 
you will understand that you are not bound 
to answer any questions which may tend 
in any way to criminate yourself, as it is 
said you are also under charges. You un- 
derstand that what you answer will be of 
your own free will, and you will not injure 
yourself by being silent. If you choose 



44 



not to answer there is no unfavorable in- ' 
ference against you. Do you understand me? 

The Witness. Yes, sir. 

Mr. Harrison. I am counsel for Mr. 
Rochford, and would, therefore, hardly ask 
him a question in this case that would em- 
barrass his defence. I am very much 
obliged to the Government, though, for its 
interposition. [To the witness.] Do you 
know of what State the defendant, William 
Smith was a resident ? 

The Witness. He lived in Savannah, 
Georgia. 

Q. Has he, or has he not been a resident 
of Savannah, Georgia, for several years ? 

A. Yes, sir. He has been a branch 
pilot there. I knew him to pilot in several 
vessels whilst I remained there. I saw him 
on board vessels. I was going to Europe 
in the summer and coming back in the f;ill, 

Q. He was a resident of Savannah at the 
time and before the commencement of the 
difficulties between Georgia and the Gov- 
ernment of the United States? 

A. Yes, sir. 

Q. Do you know that fact ? 

A. Yes, sir. 

Q. Are you acquainted with the prison- 
er's family ? 

A. I was acquainted with both his 
brothers-in-law and a brother of his. 

Q. Do you not know that he is a married 
man, with a family ? 
, A. Yes, sir. 

Mr. Kelley. One moment. I do not 
see the pertinency of this kind of exami- 
nation. 

Mr. Harrison. We can argue that 
hereafter. 

Judge Grier. I suppose it does not 
make any difference whether he is mar- 
ried or not ; but if the gentleman thinks it 
of any importance, let him ask it. 

Mr. Harrison. It may be important as 
showing that he had reasons for not desir- 
ing to submit to the confiscation or seques- 
tration of his property. [To the witness.] 
Did you see Smith on board the Jeff. 
Davis ? 

The Witness. Yes, sir. 

Q. Who was the captain of the Jeff. 
Davis ? 

A. Coxsettcr. 

(I. State if you ever saw or heard the 
letters of marque and reprisal, or what 
purported to be letters of marque and re- 
prisal, read to the crew of the Jeff. Davis ? 

A. Yes, sir. T saw them and heard 
them read by the purser, Mr. Babcock. 

il- State when that occurred and in what 
way it was done ? 

A. On the I'ith of June, Captain Cox- 
setter called all hands aft. We were lying 
in the harbor of Charleston. The purser 



and the captain stood together and said 
they were letters of marque issued by Pre- 
sident Davis, of the Southern Confederacy. 
He read them. 

Q. Did this letter purport to give an 
authority to the Jeff. Davis to make war 
upon the Government of the United States ? 

Mr. Ashton. I object. 

Mr. AVuarton. Suppose he states what 
he heard read. 

Judge Cadwalader. That would be 
better. 

Mr. Wharton, (to the witness.) Just 
state what you heard read ? 

A. They gave authority to the brig Jeff. 
Davis to wage war against the United 
States, as near as I can explain it. 

Mr. Harrison. Was there any portion 
of the brig Jeff. Davis where the letters 
of marque, or a copy thereof, or a reference 
thereto, was stuck up in a public place? 

A. No, sir. 

Q, Was it under that letter, that Mr. 
Smith and the rest of the crew enlisted and 
served ? 

A. When the full number were on board 
that were going in the brig, it was read to 
us. 

Mr. Kelley. Stateonly what you know. 

Mr. Wharton. Was Smith there? 

The Witness. Yes, Captain Smith was 
one of the men. 

Mr. Harrison. Now tell us if you 
know anything about the operation of the 
sequestration, confiscation, and militia laws 
of the Southern Confederacy ? 

Mr. Ashton. That 1 object to. 

Mr. Harrison. Let me put the question 
in a specific form and you can make a spe- 
cific objection. [To the witness.] Can 
you state how far the militia laws of Geor- 
gia, at the time of which we are speaking, 
compelled persons to render either military 
or naval duty to the State of Georgia and 
to the Southern Confederacy ? 

Mr. Ashton. We object to that. 

Judge Grier. I do not think a person 
unlearned in the law can be brought here 
to testify to the statutes of another coun- 
try. 

Mr. Harrison. Your Honors will see 
the point to which the question is put. I 
am not able to offer those laws because I 
have been cut off' from all possibility of com- 
municating with the only source from which 
they could be obtained. 

Judge Grier. You may speak histori- 
cally of what everybody knows. Every one 
knows there has been great violence used 
down there, men comjielled to enlist, &c. 

Judge Cadwaladek. What is it pro- 
posed to prove ? 

Mr. Harrison. I simply desire to prove, 
that according to the state of things exist- 



45 



injr in Georo;ia at the time in question, all 
able-bodied men over the age of sixteen 
and under the age of sixty, were required 
to render military or naval duty or to leave 
the country. That has a bearing materi- 
ally on the point of duress, which is one of 
the points on which we purpose to rely in 
this case. I think when your Honors con- 
sider the peculiar condition in which we 
are placed, and the impossibility of our 
being able to offer these laws in a more 
authentic form, and the material bearing 
they have on the quo animo of these par- 
ties, you will conclude that we ought to be 
permitted to offer this testimony. 

Mr. Wharton. 1 will merely add to what 
my colleague has said, in order to put it in 
a slightly different shape, without by so 
doing interfering at all with the form of the 
question as he has put it, that we propose 
not so much to prove a foreign law by the 
testimony of a witness like the one at the 
stand, as to prove the fact that by any law, 
or without any law, (and that is unimport- 
ant as bearing on the intention of this 
party,) by the compulsion, so to speak, of 
those who administered the government 
there, he and others were compelled to 
render military or naval service to the ex- 
isting government, whatever it was. 

Judge Cadwalader. Mr. Harrison stated 
it differently. He said, " or to leave the 
country." 

Mr. Wharton. I include that in the 
mode of putting it. 

Judge Grier. If you could prove that 
the defendant was put on board the vessel 
by compulsion, against his own will, and 
served there (as many a man has done on 
a pirate vessel) contrary to his own will, 
that would be directly to the point. 

Mr. Whartox. That is a strong state- 
ment of what would be within the same 
principle as what we propose to prove. I 
do not mean to put it exactly, as a matter 
of fact, in that shape, that he was carried 
on board by compulsion. I do not mean 
that the offer of evidence goes to that ex- 
tent ; but what I do mean to offer is, (not 
interfering at all with the point of view in 
which Mr. Harrison put it, which stands on 
its own merits,) that in the state of things 
existing in Georgia when this man was 
there, he was compelled by those who ad- 
ministered the government to render to 
that government military service, and that 
as the alternative of not doing it, he would 
be compelled to quit the country. How 
far that would in law amount to the sort 
of compulsion to which his Honor has re- 
ferred, is of course, a question for argument 
hereafter ; but the state of facts we desire to 
put in evidence is that, and it seems to us 
to bear very strongly on the intention of the 



party in carrying on the particular kind of 
warfare to which he devoted himself. 

Mr. Kelley. May it please your Honors, 
if I understand the offer at all, it is to prove 
that there was at some time, in the State of 
Georgia, a law, which all these men may 
have participated in making, which they 
themselves may have brought about, which 
called upon every man to serve either in a 
certain army or navy, on the painful alter- 
native of leaving that State. I take it that 
that can have no bearing on this case. If 
the gentlemen proposed to prove that this 
man Smith was impressed, forcibly seized 
in the streets of Savannah or elsewhere, 
carried on board this vessel, and there de- 
tained against his will, that would be per- 
fectly competent. But suppose that there 
even were proof before the Court that there 
was such a law, and that these men had 
opposed its passage, it would not exclude 
(nor do I understand that there is a pur- 
pose to follow it up with the exclusion of) 
the alternative of leaving the State ; it 
would not show that they were in any wise 
impressed, that they did not voluntarily 
choose the position they assumed and acted 
upon when they captured the schooner En- 
chantress. I cannot see its relevancy. 
Even under all the liberal offers of the 
government here as to what may be deemed 
testimony, I cannot see that it is the best 
which could be offered. If it were at all 
pertinent, relevant, or in any wise conclu- 
sive, we should not object. 

Judge Cadwalader. The question at 
present is not the effect of it, but its com- 
petency. Mr. Harrison says, if I under- 
stand him, that he desires to prove that all 
able-bodied men in that country were re- 
quired by law to render naval or military 
service, or leave the country. Mr. Whar- 
ton adds, " we desire to prove that this 
man was in fact compelled to enter into 
military or naval service or leave the coun- 
try." 

Mr, Whartox. As an existing state of 
facts there, where he was. 

Judge Cadwalader. That is to say, the 
existing state of facts produced the neces- 
sity. Is that what you mean ? 

Mr. Whartox. Yes, sir. 

Mr. AsHTox. I should like to know 
which offer is before the Court — that of 
Mr. Harrison, or that of Mr. Wharton ? 

Mr. Whartox. Both. 

Mr. Harrisox. I thought it was agreed 
that this was a case in which we were not 
to be very particular as to form. 

Judge CiRiER. I think we have got very 
wide already, but this is extravagantly wide. 

Mr. Harrison. I respectfully submit 
that we may be able by this testimony to 
show such a state of facts as, if not amount- 



46 



ing to actual, positive physical force, would 
at least amount to that degree of moral and 
legal force which would constitute that 
kind of duress which would be a good legal 
defence to the accused here. That, how- 
ever, is a question for argument hereafter, 
and I do not propose to go into it now. I 
did suppose that under the peculiar state 
of things existing here, in view of the im- 
possibility of getting copies of these laws, 
we should be allowed to show by a witness 
who iinows the fact, that these laws, so far 
as they were susceptible of producing du- 
ress, were brought to bear on the prisoner 
at the bar, and that under their influence 
he was induced to take the position which 
he did take at the time of the commission 
of the alleged offence. 

Judge Grier. a sort of moral duress. 

Mr. Harrison. Something more than 
that. If this man's home and property lay 
South, he may not have been able to afford 
to leave them. It may have been impossi- 
ble for him, without an absolute sacrifice 
of everything, to leave the country in which 
he lived and to which, as we shall contend 
before your Honors, he owed at least an 
involuntary if not a voluntary allegiance 
How are we to get the benefit of this 
point ? It is an important point in the case. 

Judge Grier. You might, more justifia- 
bly, I think, plead the total insanity of the 
people in the South altogether. The ques- 
tion was once asked whether a nation could 
be insane, as well as an individual. I have 
no doubt it can. You might as well set up 
national insanity. If, however, my brother 
Cadwalader has any doubt about it, your 
question shall be admitted. 

Mr. Harrison. I hope your Honors will 
give us the benefit of that doubt. 

Judge Grier. I do not know that he has 
any. 

Judge Cadwalader. I am of opinion 
that this witness is not competent to tes- 
tify as to the law of Georgia. When a 
question is put tending to prove any par- 
ticular fact that occurred, it will be time 
enough to consider its competency. 

Mr. Wharton. Then I will put the ques- 
tion in the modified shape I suggested, 
whether at the time in question the defend- 
ant was not in point of fact compelled to 
render military service to the existing 
government of the place where he was, 
under pain of being turned out of the coun- 
try if he did not. 

Judge Grier. It seems to me that that 
is only the previous question generalized a 
little so as to get clear of the particular 
facts on which it was rejected. It is only 
asking his opinion of a fact. I observe 
that it was very nicely put. 

Mr. Wharton. May it please your Hon- 



ors, it is very difficult to view broad facts, 
such as national facts, without incorporat- 
ing matters of opinion into the view of 
those facts. It is not like the question put 
by my colleague, which your Honors over- 
ruled, as to the existence of particular facts 
in certain figures written, as a statute law. 
You prove the existence of a certain pub- 
lic statute ; there is no matter of opinion or 
conjecture about it. But when you deal 
with great political facts, it is different. 
Take, for example, the fact of an insurrec- 
tion in the southern country. That neces- 
sarily involves matter of opinion. Upon 
that state of facts, we have in evidence the 
opinion of the President of the United 
States, as shown in his proclamations. He 
has stated that a rebellion and insurrection 
existed within certain tentorial limits. That 
is partly a matter of opinion ; perhaps on 
the part of the President, altogether so, 
because derived from the information of 
others. He was not there, he did not see 
the assembling of armed men, and the com- 
mencement of belligerent operations. Those 
great national facts which are shown in 
that way are of themselves, necessarily, in 
a great measure, matters of opinion or 
judgment. That is in the case already, and 
all that 1 propose to ask of this witness now 
is, whether the state of things was not such 
that in point of fact the prisoner at the bar 
was compelled to render military service 
to the existing government. He will tell 
us exactly what he knows on that subject, 
and what the state of public opinion and of 
action there was in reference to this sort 
of conduct. I agree that it is partly com- 
pounded of the opinion of the witness ; but 
I respectfully submit that that does not 
exclude it from the character of legal tes- 
timony in the case. 

Judge Grier. It strikes me that this is 
only inserting the words "in point of fact" 
in the previous question, in order to get the 
opinion of the witness. If there is a great 
insurrection, on this theory may not every 
fellow say " 1 had to go with them ; there 
was so much violence and excitement, that 
1 was forced to act with them," and thus 
may not the whole hundred or hundred 
thousand escape ? 

Mr. Wharton. I submit that that is 
the only way you can deal with communi- 
ties ; and it is just that concentrated action 
which gives character to the act, gives it 
publicity, in fact. To refer to an analogy 
which was suggested by one of the Judges 
on the Bench in the case of insanity, it is 
very easy for a man to counterfeit or feign 
insanity so as to impress his neighbors and 
those who are conversant with him with 
the conviction that he is insane ; but when 
you call a witness to testify as to the state 



41 



of mind of another, it is not an objection 
to his testifying to the fact that it is possi- 
ble the whole of it may be feigned. I 
respectfully submit, therefore, that, al- 
though these questions do involve to a 
certain extent matter of opinion, that does 
not deprive them of the character of legal 
evidence. We cannot get at the f.ict of 
an existing law in Georgia, I presume, 
by any mode known to the laws of the 
United States. That is one of the facts in 
the case which we cannot get over. 

Mr. AsHTON. It is one of the enormities. 

Mr. Whakton, It may be one of the 
enormities of the conduct of others, under 
whose enormity of conduct this defendant 
may be now suffering. I suggest that if a 
state of things existed at that time in the 
Southern country to induce the conduct 
complained of on the part of this defend- 
ant, he cannot be tainted with the imputa- 
tion of that general spirit of plundering all 
mankind, which is an essential composition 
in the character of a pirate or sea-robber. 
It is all as bearing on that, that this testi- 
mony is offered, and I respectfully submit 
that in that shape the question may be 
properly put. 

Mr. Harrison. There is, if the Court 
please, another point of view, in which this 
testimony, it seems to me, may be properly 
admitted. This is clearly a case where the 
party having shown the impossibility of 
obtaining that primary evidence which 
would alone be admissible if the circum- 
stances of the case had allowed it, is justi- 
fied in law in introducing that secondary 
evidence of which the case is susceptible. 
Have we not strictly brought ourselves 
within that rule of law which entitles us 
here to introduce before your Honors and 
the jury as secondary evidence the only 
possible proof in our power of the existence 
and character of the statute of Georgia ? 
"VV'e are unable to obtain a certified copy 
from the State of Georgia. Every effort 
has been made to obtain it. More than 
twice have I written for the purpose of 
getting a full and authentic copy of all 
these documents, and I have been disap- 
pointed in obtaining them, in consequence 
of the impossibility of holding any postal 
communication with the Southern authori- 
ties or any portion of the Southern Confed- 
eracy. I submit to your Honors whether, 
upon that principle which authorizes the 
introduction of secondary evidence where 
primary evidence is unattainable, we are 
not entitled to ask this witness whether 
there is not in the State of Georgia a law 
of the description I have indicated, and 
whether its character is not of the purport 
which is embodied in the question before 
your Honors ? 



Judge CADWAtiADER. In view of the 
statement of the opening counsel for the 
defence (Mr. O'Neill), and of the argument 
on the question of evidence already decided, 
I think this question cannot be put, unless 
it is proposed to prove some fact of actual 
compulsion exercised as to the defendant 
in particular, or as to the crew of which he 
was one. 

Judge Grtrr. My colleague has cor- 
rectly stated the law. 

Judge Cadwalader. I desire in this 
stage of the cause, to avoid, as far as pos- 
sible, discussing the legal effect of these 
questions. I would merely remind the 
counsel of the decisions as to what shall 
constitute compulsion under such circum- 
stances, particularly the cases of the Scotch 
Highlanders, which were very strong cases. 
Mr. Harbison. Will your Honors ex- 
cuse me for putting the question in another 
shape ? 

J udge Cadwalader. That is what I 
rather meant to invite. 

Mr. Harrison. I will put it in this 
form : At the time the prisoner entered 
into the service of the privateer Jeff. Davis, 
what was the law of Georgia in regard to 
military and naval duty to the Southern 
Confederacy ? 

Judge Grier. That is more objection- 
able. 

Mr. Kei-ley. Mlow me to suggest a 
question of fact that may obviate all this 
difBculty ; and that is, to learu whether 
this man joined the ship in the State of 
Georgia. That has not been shown yet. 

Mr. Wharton (to the witness). Mr. 
Rochford, where did Smith join the Jeff. 
Davis? 
The Witness. In Savannah. 
Mr. Wharton. You have spoken of 
the reading of the letters of marque ia the 
hearing of the crew ? 
A. Yes, sir. 

Q. Did you leave the port of Charleston, 
and Smith with you, under those letters, 
after their reading? 

A. We had to fit out the vessel after 
that time. There were some repairs to be 
done, both aloft and below. 

Q. I want to know whether those letters 
made the contract between the men and 
the commander under which they entered 
into service ? 
A. Yes, sir. 

Q. At what time did Smith leave there? 
A. We left Charleston on Friday even- 
ing. June 'iSth, 

Judge Cadwalader. I thought you said 
he joined at Savannah. 

The Witness. We left Savannah about 
the 8th of June, and went to Charleston. 
Mr. Harrison. Where were you taken, 



48 



after you were captured by the Alba- 
tross ? 

A. We were put on boaril the Albatross 
about twenty-five miles south of Hatteras 
Inlet, sailed to Hampton Roads, lay at 
anchor there, and then went up as far as 
the Potomac. 

Q. How lonj; did you lay at anchor in 
Hampton Roads ? 

A. About twenty-four hours 

Mr. Wharton. ^V'ere you taken up the 
Potomac, Smith with you ? 

A. Yes, sir. We were taken up the 
Potomac to relieve a steamer that was sta- 
tioned there, which had to go somewhere 
else. We came to anchor there, and 
stopped forty-eight hours. 

Mr. Harrison. How far from the Vir- 
ginia shore, at Old Point, were you at 
anclior ? 

A. About three-quarters of a mile. 

Q. When you got to the mouth of the 
Potomac, how far from the Virginia shore 
were you ? 

A. As far as I can recollect, about a 
mile and a-half. 

Q. Where did you go, when you left the 
mouth of the Potomac ? 

A. We came down to Hampton Roads, 
and came to anchor again? 

Q. Then you anchored twice at Hamp- 
ton Roads? 

A. Yes, sir. 

Q. How long did you remain at anchor 
at Hampton Roads the second time ? 

A. 1 should think not more than twenty- 
four hours. We then weighed anchor, 
took the schooner Enchantress in tow, and 
came to Philadelphia. 

Q. Whilst you were at anchor at Hamp- 
ton Roads, did the Albatross have commu- 
nication with the land by boats? j 

A. They had communication with the ' 
flag ship. 1 Saw some vegetables coming 
on board. 

Q. Did boats pass backwards and for- 
wards from the ship to the shore? 

A. Not that I ain aware of. 

Mr. Wharton. Will you state, if you 
please, what was done with Smith when he 
was first taken by the Albatross? 

A. We were taken on board and put in 
double irons, and put down below, along- 
side the boilers, 'i'hey call it the engine 
room — the passage that goes by the boil- 
ers, where the men put their hammocks in 
the day time. 

Q. Is that a warm place? 

A. Yes, sir; pretty warm. 

Mr. Karlk, What is the relevancy of 
this ? 

Mr. Wharton. It rather expands the 
evidence in regard to the arrest, which 
was made a point by the government. 



' Judge Grier. I see nothing in it. What 

has it to do with the case ? 
I Mr. Wharton. Perhaps I can indicate 
! some connection. 
I Jud.'ft (Jkier. Very well. 
; Mr. Wharton. The indictment contains 
' an averment that this defendiint was first 
brought into this district, and was appre- 
[ hended here. In order to prove that aver- 
ment in the indictment, the tiovernment 
brought up the deputy marshal to show 
that he took a warrant to the navy yard, 
j and arrested him there. C)ur purpose is to 
j show that he had been arrested, and put in 
irons long theretofore. We propose to 
show that he was not first brought into this 
district, but into another district. 
I Judge Grier. What have the handcuffs 
to do with it? If he had been taken to 
Baltimore and laiided. or to any other place 
and landed, there might be something in 
your point ; but it is not affected by the 
fact that a naval officer put irons on a man 
charged with piracy. 

Mr. Wharton. The word is "appre- 
hended," not "arrested." 

Judge Cadwalader. That is the alter- 
native; but the jurisdiction is not rested 
by the United States in this case on the 
placit where the person was apprehended, 
but on the district into which he was 
brought. He was on board the Albatross, 
I suppose, as a prisoner of war; and from 
that custody, as 1 understand the tendency 
of the lestiuiony, he was handed over to 
the civil authorities. The question then is 
whether the Court has jurisdiction. There 
are two alternatives as to the jurisdiction : 
one. depending on the place where the man 
is apprehended, which we will not prejudge 
the j)oint by saying does not apply to a 
capture of this sort, but may not apply to 
it; and the other, depending on the dis- 
trict into which he is tirst brought. Now, 
how is either of those points affected by 
the manner in which he was treated while 
in custody ? 

Mr. Wharton. 'Ihe particular mode of 
treatment is perhaps not so important upon 
the legal question ; but as there was some 
testimony from the witnesses of the govern- 
ment with respect to the condition of the 
party, tliis was intended to show the point 
of time from which that condition should 
date. 1 shall not press it. 

Mr. Harrison. 1 do not know how far 
we shall be at liberty to avail ourselves of 
any objection to the rulings of your Honors 
on any point in tliis case; but stdl I re- 
spectfully ask that your Honors will note 
our objections to the points which have 
been raised and overruled. 

Judges Grier and Cadwalader. C§r- 
taiuly. 



49 



Mr. Wharton (to fbe witnrss.) Air. 
Rocliford, at the time and before llieperio(] 
of Srnitli's shippinji on board the Jeff. Da- 
vis, were tlie United States' courts open in 
Savannah and Charleston? 

The WiTXKss. No, sir — 

Mr. Kki.i.kv. Stop We object to that. 

Judge (iRiER. It is a fact that every one 
knows. The proclamations of the Presi- 
dent show it. 

Mr. Wharton. The witness says tliat in 
point of fact the courts were not open and 
tlie United States' officers were not per- 
forming their functions there. 

Judge Grikr. 'I'he judges had resigned 
before that time in both South Carolina 
and Georjiia, 

Mr. WiiARTON (to the witness.) How 
long had you known Smith, either person- 
ally or by reputation, before jou started in 
June on this voyajre ? 

A. I have known him for four years, by 
coming into Savannah in the fall of the 
year from Liverpool, and going back in 
the spring. 

Q. Did you consort with him so as to 
know about him ? 

A. Yes, sir. I have conversed with him 
many a time about seafaring business. 

Q. Had he a fixed home there ? 

A. Yes, sir. He had a wife, and one 
boy, fourteen years old. who went to New 
York some twelve months ago, to get his 
education. 

Q. You have stated that he was a pilot : 
was that his reguUir occupation ? 

A. Yes, sir, that was his profession — a 
full branch pilot of the Savannah river. 

Q What was iiis reputation — that of an 
orderly, quiet, law-abiding citizen, or other- 
wise ? 

A. He was an honest citizen of Savan- 
nah, a native of the place, as 1 understood. 

il- Was be a peaceable, quiet man ? 

A. Yes, sir. 1 had an opportunity of 
knowing him because I stayed there in the 
winter time, and worked in a cotton press 
and saw him pass regularly once or twice 
a week. 

Q. You have heard others speak of him ? 

A. Yes, sir. 

Q. Was that the manner in which he 
was held and reputed by people generally 
about the town ? 

A. Ye?, sir. I never heard of his get- 
ling in any difficulty. 

Cross-examined by Mr. Astiton. 

Q. Was Smith on board the Jeff. Davis 
when you went on board? 

A. He arrived just one day before me. 

Q. Do you happen to recollect what day 
of the month it was, and in what month? 

A. It was on the 8th of June that I 
arrived. 



Q. In what capacity did you find Smith 
on board that ship ? 

A lie was acting as boatswain of the 
vessel. 

Q. What were the duties of that office ? 

A. The occupaticm of a boatswain is to 
teach a man's work if a man d^es not know 
how to do it as a mariner. A man canimt 
fulfil the duty without having some under- 
standing of seafaring business. 

Q. What day did the vessel leave Char- 
leston harbor? 

A. On the '28lh of June. 

Q. Then front the 8th of June to the 
28th of June. Smith was on board that 
vessel in the harbor of Charleston? 

A. Y'^es, sir. fitting her out for sea. 

Q. Was William Smith in confinement 
on board the shi]) during that time ? 

The Witness. Do you mean handcuffed ? 

Mr. AsuTON. I mean physical restraint 
of any kind. Was he confined in the cabin ? 

A. No, sir; but he was confined in this 
respect; that neither he nor any man on 
board the Jeff Davis could go ashore with- 
out getting permission from the captain. 
There was a sentry of marines on the gang- 
way, and your business had to be known, 
and you had to get permission from the 
captain to get ashore, or to come aboard. 

Q. Were the officers allowed to go oa 
shore ? 

A. Not without permission from the 
captain. 

Q. Were the ordinary sailors of the ves- 
sel allowed to go on shore? 

A. No, sir. 

Q. During the days the vessel lay as yoa 
have stated in Charleston, do you or do 
you not know that William Smith went 
ashore ? 

A. Not to my recollection. 

Q. Do you know that he did not go 
ashore ? 

A. The vessel was small, and he held a 
situation from which a man could miss him 
very readily; and, as far as 1 recollect, he 
did not go ashore. 

Q. But you do not say positively that he 
did not go ashore ? 

A. I cannot say that ; but I had a pood 
opportunity of missing him out of the ves- 
sel. .\o officers went ashore while I was 
there excej)t the cajjlain. not even th • first 
lieutenant or second lieutenant, according 
to my recollection. 

Q. Was the letter that you spoke of as 
having been read on board the Jeff. Davis, 
read in the harbor of Charleston during 
your stay there? 

A. Yes, sir. Some dispute got up 
among the men, and Coxsetter called thein 
all out, and read the letter of marque. He 
was bv the side of Dr. Babcock. 



50 



Q. Did that proclamation or any an- 
nouncement made on hoard the vessel dur- 
in<^ this time speak of the prize money that 
you were to get ? 

A. No, sir. 

Q. Was there any arrangement in re- 
gard to prize money ? 

A. Well, I heard some mumbling amon<j 
the men about it, but not from the officers. 

Q. What proportion of prize money were 
the men on board the Jeff. Davis to get? 

A. I hardly recollect now. 'i'hey w^re 
talking about some a quarter of a share, 
and some half a share, and so on, accord- 
ing to the situation each man occupied on 
board tiie vessel. 

Q. Then the boatswain was to get more 
than the common sailor? 

A. I never heard any thing mentioned 
about the officers. 

Q. How long were you going from Char- 
leston to Savannah. 

A. One day. 

Q. How long did you lie in the harbor of 
Savannah ? 

A. I was not on board the vessel at Sa- 
vannah. I came from Savannah to Char- 
leston. 

Q. Was that document read in Charles- 
ton or Savannah ? 

A. In Charleston harbor. 

Q. Where did you go when you left 
Charleston ? 

A. To sea. 

Q. When did the vessel go from Savan- 
nah to Charleston ? 

A. The vessel did not go to Savannah. 
We joined her in Charleston harbor. 

Mr. AsiiTON. I thought you said you 
joined her at Savannah? 

The WiTNKss. In Savannah, we arranged 
to go, Hud joined the vessel at Charleston. 

Q. You saw Smith on board the Jeff. 
Davis on the 8th of June : where did you 
see him last before you saw him then ? 

A. Ill Savannah. 

Q. How long before? 

A. About the oth or 6th of June, I saw 
him there. 

Q. You were in Savannah on the 5th or 
6th of June, and on the 8th you went from 
Savannah to Charleston ? 

A. Yes, sir, on the cars. 

l^. So far as you know, then, William 
Smith went from Savannah to Charleston 
Vuluu arily ? 

A. No, sir, I will not say that. He did 
not go voluntarily. The laws of the South- 
ern States — 

Mr. AsHTON. Never mind about the 
laws. 

Mr. Wharton. The gentleman asks 
■whether he went voluntarily. We are en- 
titied to the answer. 



Judcre Grirr. The counsel has a right 
to put the questions as he pleases, but the 
witness has a right to answer. 

Mr. AsHTON. I withdraw the question. 

Mr. Harrison. I object to its being 
withdrawn after the witness has commenced 
to answer it. 

Mr. W}iARTON. It seems to me it is part 
of the proper answer to the question to 
show how he went and why he went. 

Judge Cadwai.\dkr. After the full warn- 
ing which the early examination gave as to 
the tendency of this question, 1 think it 
ou'jht to have l)een withdrawn before it was 
withdrawn, or else the witness ought to be 
allowed to complete his answer. 1 suppose 
that in strictness the counsel for the United 
States can withdraw the question, though 
it may have been partly answered. At the 
same time, as it was put advisedly, after the 
full nature of the subject had been devel- 
oped and discussed, I think it would be 
taking a very strict advantage of their legal 
right not to allow the question to be ans- 
wered. 

Judge Gbier. (To the witness.) You 
said he was compelled to go. Give us the 
full answer. 

The WiTNR.ss. I was asked whether 
Smith came voluntarily or not. I say 
every man was compelled to join the army 
or navy; and he being acquainted with sea 
life, like every seafaring man, thought it 
better to go in the navy than the army. 

Mr. AsHToN. Mr. Kochford, did you 
see anybody take him from Savannah to 
Charleston ? 

A. 1 did not see anybody take him ; but 
I saw him in Savannah with a valise in his 
hand, on the hotel i)iazza. 

Judge Grier. And from that you con- 
cluded he was compelled ? 

A. No; but by the laws of the Southern 
States 

Judge Grikr. Oh ! never mind ! 

By Mr. Keu.ey : 

Q. I understood you to say that Smith 
joined this vessel at Savannah ? 

A. No, sir; I did not say that. The 
vessel could not be at Savannah and in 
Charleston harbor at the same time. He 
joined the vessel at Savannah, to go on 
board of her at Charleston. 

Q. You mean that he shipped in Savan- 
nah ? 

A. Yes. sir. 

Q. And he went to Charleston by rail- 
road ? 

A. Yes, sir. 

Q. Did the whole crew go together? 

A. The greatest portion of them did. The 
remainder were in Charleston before. 

Q. Are you a citizen of the United 
States ? Have you ever been naturalized? 



51 



A. I never had my papers. The first 
time I came to the United States I was 
under age, and I had no occasion to get 
papers. 

Daniei, Mui.i.inzs called and sworn, and 
examined by Mr. Harrison. 

Q. or what place are you a native ? 

A. Charleston, South Carolina. 

Q. Are you acquainted with the defend- 
ant. Smith? 

A. Yes. 

Q. or what State is he a native ? 

A. I believe he is a native of South Caro- 
lina, but a citizen of Savannah, Georgia. 

Q. How long has he been a citizen of 
Savannah ? 

A. I do not know. He served an ap- 
prenticeship there in a Savannah pilot 
boat, fie must have been there when 
very young. 

Q. Then he has been a resident of Sa- 
vannah for several years, to your know- 
ledge ? 

A. Yes, sir. 

Q. Was he a resident of Georgia at the 
time of the passage of the secession ordi- 
nance of Georgia, and the formation of the 
Southern Confederacy ? 

A. Yes, sir. 

Q. Was he a housekeeper, and the head 
of a family, in Savannah? 

A. Yf'S, sir. 

Q. What was his occupation ? 

A. A full branch Savannah pilot. 

By Mr. Wharton. 

Q. Does it not require previous training 
and education, to become a full branch 
pilot ? 

A. Yes, sir; a servitude of years. 
From one grade you rise to another, from 
twelve to fourteen, sixteen, eighteen feet, 
to full. 

Q. According to the draft of water of 
the vessels you pilot? 

A. Yes, sir. You have to serve an ap- 
prenticeship according to that, and to be a 
citizen. 

Q. How far is sobriety a necessary 
quality ? 

A. That is required. 

(^. How tar is honesty requisite ? 

A. That also. He has to give security 
as regards conduct. 

Q. You knew him in his occupation and 
profession as a pilot? 

A. Yes, sir, for many years. 

Q. What did people generally say of 
him, who knew him ? 

A. 1 never heard anything spoken 
against him ? 

Q. How was he reputed, generally? How 
did he stand with his neighbors, with those 
who knew him ? 



parents or grandparents 
He had them some time, 
I think they lived in 



A. They all seemed to like him well. 

Q. He was a peaceable, quiet man? 

A. Yes, sir. He was connected with 
the vessels of Northern men more than 
those of Southern men. There are more 
Northern and European vessels in those 
waters than Southern vessels. 

Q. Were you acquainted with his family 
in Savannah ? 

A. No, sir. 

Q. Had he 
living ? 

Mr. K EI, LEY. 

no doubt. 

The Witness, 
South Carolina. 

Mr. Wharton. I do not want to go too 
far, but to show that the man had connec- 
tions there. 

The Witness. I knew a Mrs. Smith on 
Sullivan's Island, South Carolina, who is 
either his aunt or his grandmother. 

No cross-examinaton. 

Mr. Harrison. We are through with 
our oral testimony, but I understood your 
Honors to allow us until to-morrow to make 
a note of the various documents to be re- 
ferred to. 

Judge Grier. I suppose so far as mat- 
ters of history are concerned, such as the 
dates of the various secession acts of the 
States, you can take them from any book 
you please, 

Mr, Wharton, We should like to put 
these matters in as evidence, so that the 
history may be fixed here. 

Judge Grier. Make a brief in writing 
of the documents you want in, and hand it 
to us in the morning. Have we the case 
on both sides? 

Judge Cadwalader, Is there any re- 
butting testimony for the prosecutiou? 

Mr. AsHTON. No, sir. 

The Court adjourned till to-morrow. 

Thursday, October 24, 1861, 
Mr, Harrison ottered the list of docu- 
ments alluded to yesterday, viz. : Procla- 
mation of marque and reprisal of President 
Davis, of the Confederate States; the Con- 
stitution of the Confederate States ; the 
Inaugural Address of President Davis; 
a synopsis of the Confederate States Army 
Bill ; the secession ordinances of South 
Carolina, Alabama, Georgia, Louisiana, 
Florida, Mississippi, Texas, Virginia, Ten- 
nessee, Arkansas, and North Carolina, 
respectively ; the Act of the Confederate 
Congress of May 6, 1861, recognizing a 
state of war between the United States 
I and the Confederate States ; President 
i Davis' Message to the Confederate Con- 
1 gress, April 29, 1861; Instructions for 
i Privateers, by order of the President of 



52 



the Conffderate States ; and the Procla- 
mations oF Governor Letcher, of Virginia, 
and (Jovernor Ellis, of North Carolina, as 
contained in Moore's Rebellion Record. 

Judge Grier. These papers are not re- 
ceived as evidence of any fact except the 
fact of their own existence. 

Mb. Earle proceeded to sum up for the 
Government : 

With submission to your Honors, Gentle- 
men of tbe Jur}', it is a ni;itter of contract 
■vvhich must strike every mind who glances ;it 
the mode of procedure here in our courts, 
and the mode of procedure in other pbice-' 
vhtre a government rival to our own has 
been set up, and it is a matter, also, of plea- 
sure, that we go on in this court tianquilly, 
without disturbance, in tlie midst of general 
wreck and ruin which surround us, and ad- 
minister justice quietly and deliberately, nnd 
that tlie prisoner at the bar will have as fair 
a trial at the hands of his countrymen, will 
have justice as fairl}' meted out to him by the 
Court and byjthe Jury, as if the tranquillity 
which existed four years ago, now prevailed 
in our midst. He can complain of nothing 
but the fairest treatment, even on the part of 
those whose duty it lias been to prosecute him. 
It must have struck you, in the course of the 
trial, tluit a great deal of the matter which 
has been offered by his leained and able 
counsel, might have been ruled out on 
different technical grounds ; but that was not 
the desire of the government, nor of the prose- 
cuting officers. The desire was that this man 
should have, in every sense, a fair trial, and 
that that conviction of which we felt assured 
in redress of the violated and injured law of 
the country, should stand on so broad and 
sol'd a basis, tliat there could be no objection 
taken to its having been secured by any sharp 
technical point, but that it would stand as an 
adjudication of this Cdurt, on an offence of a 
high national character, in a great and im- 
portant State trial. 

The evidence is so simple that it would 
seem to be a matter of no necessity for me to 
recapitulate it to you. The cardinal facts 
are undisputed. If such a thing were known 
in criminal proceedings as an admission in 
the shape of a case stated, we might take 
even the facts as detailed by the defendant's 
own witnesses, write them down, let you find 
them as a special verdict, and let the Coui't 
pronounce their opinion on it as a matter of 
law. 

In the first place, gentlemen, the defendant 
is a citizen of the United States. He cannot 
divest himself of that allegiance which he 
owes to the United States. It appears by tiie 
testimony that he was born in the State of 
South Carolina, and resided in the State of 
Georgia ; but he is a citizen of tlie United 
States, and can never divest himself of that 
allegiance, in law, without the consent of the 
United States. Certainly, I may state that 



doctrine without limitation, so far as the pur- 
poses of this trial are concerned. He being 
such citizen, let me briefly call your atten- 
tion and that of the Court, to an act which 
shows what Congress has thought of his con- 
duct in this case : 

"If any citizen shall commit any piracy or 
" robbery aforesaid, or any act of hostility 
" against the United States, or any citizen 
'• thereof, upon the high sea, under color of 
" any commission from any foreign Prince or 
" State, or on pretence of auth(U-ity fiom any 
" person, such offender shall, notwitlistanding 
'• the pretence of any such authority, be 
" deemed, juljudged, and taken to be a 
" pirjite. felon, and robber, and on being 
'• thereof convicted, shall suffer death." — Act 
of April 30, 1790, § 9; Briyhlh/s DiijeH 
Laws U. S.,p. 207. § 29. 

The other acts, I nmy advert to presently. 
It jippears in evidence that tlie prisoner 
voluntarily went from Savannah to Charleston 
to go upon the expedition. It appears, on 
his own allegation, that he exercised his 
volition in that act. There was no constraint ; 
there was no compulsion : but even if there 
were, it would be no defence, because it was 
held by Mr. .Justice Washington, in the case 
of the United States vs. Jones, (3 Washing- 
ton's Circuit Court Repcu-ts, p. Iili9), that no 
orders from a superior officer will justify a 
subordinate in the commission of what the 
latter knows or ought to know to be piracy; 
all who are present acting or assisting in the 
offence, are deemed to be principals. There- 
fore, when he took his valise and proceeded 
in the railroad car from Savannah to Charles- 
ton, with the other parties forming the expe- 
dition, doubtless in high spirits, doubtless 
without a thought on his mind of tiiat which 
has been set up hei-e in his behalf, perhaps as 
an evasion, perhaps as an after thought, that 
there was the least compulsion or control 
upon him in doing this — when he did it, he 
did it under the law of his country as a 
voluntary act, of which he must take all the 
consequences. He took tiie risk of capture, 
for the profit that he might make. lie took 
the risks of the expedition, and he can blame 
nobody but himself, for the consequences 
which his own act has brought upon him. 

The offence with whicli this man is charged, 
has been condemned by almost every legal 
writer, and certainly by every moralist who 
has ever written on the subject. Dymond, 
Paley, others that might be cited, have said 
that privateering, (taking this offence in the 
lenient way contended for by the defendant's 
counsel) is the most cruel part of warfare, 
when legitimate and when recognized, and is 
the meanest part of it, under any circum- 
stances, be it legal or illegal. The privateer 
is supposed to be less animated by the spirit 
of patriotism, misguided or proper, than any 
other man. He starts on the expedition as a 
kind of Jerry Sneak of the ocean, if I may 
use the expression. He starts, not for the 
purpose of carrying on war in the most 



53 



effective way, but for the purpose of filling 
his own pocket. He preys on the commerce 
of innocent people, property owned, perhaps, 
by widows and cliildren afar off, whom he 
never knew, who, perhaps, might agree in 
sentiment with him on the very difficulties 
existing. He starts on the ocean to seize tlieir 
property, to pillage their ships, to inflict on 
them the worst effects and sufferings of 
piracy. It may be that the privateer comes 
across a poor sailor returning from a voyage 
to China, or to the North or South Pole, who 
started years ago in a time of peace and 
tranquillity. A poor sailor who sailed, per- 
haps, on a whaling voyage at tlie commence- 
ment of the administration of President 
Buchanan, now returning after four years' 
absence from his family, is met by the J(ff. 
Davis, a shot fired across the bow, and tlie 
poor whaler brought to, and to his astonish- 
ment, the first question is, " Did you not know 
that war had broken out in the United States ?" 
He knows of no such thing. If a messenger 
had come from Heaven, he could not believe 
it in view of the state of affairs wiiich pre- 
vailed four years ago. He is brought to, his 
cargo of whale oil is taken from him, and 
after four or five years' of suffering in the 
frozen regions of the North, he finds himself 
a penniless, ruined man at the hands of the 
very scum and off-scouring of Southern cities, 
poured on the ocean to sweep tlie commerce 
of poor and suffering working people of the 
North, from that ocean, by acts in law and in 
morals, piratical. Privateering has been con- 
demned, and it has been proposed, time after 
time, by civilized nations, to abolish it, and 
I believe thatlatterly our Government has con- 
sented to its abolition. It has been proposed 
to abolish it, because it was non-eftective in 
war, because it was destructive and injurious 
to innocent parties, and because it had no 
savor of Heaven about it in any waj' or in 
any light ; and how any good man could 
engage in it, be the quarrel what it might be, 
would be exceedingly difficult to understand, 
because it inflicts ruin on the innocent. 

The evidence shows you that a citizen of the 
United States embarks in this nefarious busi- 
ness; and what is the defence? There has 
been a great deal of legal fencing here. A 
great many questions have been asked, wliich 
must have struck you as wholly immaterial. 
The materiality of them consisted entirely in 
the fact that they were sharp legal points. 
They had no relation to the case. All those 
points fell to the ground, owing to the 
vigilance and preparation of the acting Dis- 
trict Attorney. He met each and all of them, 
and foiled them all But the defence that I 
understand to be set up — and which will be 
alluded to more particularly by my learned 
colleague, who is to follow mc — is that this 
man acted under some paper authority. The 
answer to that is simply this : that in all the 
decisions to which I shall allude, and which 
will be alluded to more fully by Judge Kelley. 
it has been uniformly held that this defence 



of a piratical act is not good unless it is done, 
bona fide, under a commission. Hence, to 
that defence which may be set up, maik my 
plain and honest reply : — that the commission 
must be issued bona fide, and must be acted 
on bona fide. The reply — and there is the 
nut shell of the case — is that as allegiance is 
owing by the citizen to the United States, and 
as he is presumed to know the law of the 
United States, he cannot shield himself under 
a commission issued to plunder the United 
States ; no commission to rob his own country- 
men can be lona fide ; but such an excuse 
is an aggravation of the offence in law and in 
morals. A man brought befoi-e this court on 
a charge of contempt, might just as well put 
in an answer denying the power of the court 
and saying that he refused to obey or execute 
the mandate of the court, which would only 
be aggravation, like the excuse of the clown 
who struck the King, and apologised to his 
majesty by saying he thought it was the 
Queen. Meeting that point at the outset, by 
the answer which stiikes me as the iiinge of 
the whole case, 1 will call your attention very 
briefly to the facts. 

The defend nt. Smith, leaves the port of 
Charleston, on board this piratical vessel. 
She makes different captures. She meets the 
Enchantress My learned friend, Mr. Harrison, 
I believe, asked if any more violence was 
used than was necessary to effect her capture. 
Certainly, it would have been unnecessary to 
use unnecessary violence. These engaged in 
the capture would not fire into and destroy 
property which they were about stealing. But 
the language of the courts on that point is 
very simple. In the case of the Malek Adhel 
(2nd Howard's Reports, 210), the Supreme 
Court of the United States, decided that by 
the words "piratical aggi-essions" in the act 
of 1819, were meant such offences as pirates 
are in the habit of committing, whatever the 
motive, whether plunder, revenge, hatred, or 
wanton abuse of power; and consequently 
that actual plunder or intent to plunder, need 
not appear to bring the case within the com- 
pass of the act, any piratical aggression, 
search, restraint, or seizure being sufficient. 
It was decided in the case of the United 
States vs. Tully (1 Gallisou's Reports, 247), 
that there need be no peisonal violence to 
constitute pii-acy, within the '.Hh section of the 
act of 1790. If the intention of taking or 
stealing, the animus furandi appears, it is 
sufficient. Of course, that disposes of the 
whole questidn, whether the crew of the En- 
chantress yielded to reasonable fear of violence 
or not. They looked over to this vessel and 
saw the motley crew armed to the teeth. They 
were not required to commit any act of in- 
sanity, let the insanity in any portion of our 
country, be what it may, as his Honor .Judge 
Grier suggested. We are not to suppose the 
whole human race are mad. The crew of the 
Encha) tress were not to wait to be blown out 
of water. Mark the conduct of the defendant 
at this juncture. It is set up here that he 



54 






Teas innocent in tbis matter, that he had no 
\vrong intention, that he was the victim of 
compulsion ; and laws of some Southern 
States which have no relevancy to the matter, 
have been referred to, which could only be 
offered to sustain some such theory as that 
Smith was an unwilling actor in this trans- 
action. The whole evidence shows the re- 
verse. Look at his conduct towards the 
colored man, as an example. He had been 
sent from the Enchanlress to the Jeff. Davis, 
but was brought back in the boat with Smith. 
He was asked " why have you brought him 
along?" What is the answer? Why, "we 
will take him to Charleston, where he will 
bring $1500," — an offeiice against the law of 
South Carolina, an offence against the law of 
Georgia, and an offence without feeling, be- 
cause to tear a man from his home and en 
slave him forever, against the usages of war- 
fare, stamps this transaction just in the light 
in which I wish you to look at it in all truth, 
and fairness, and honesty. It was a piratical, 
outrageous aggression, without any of the 
color or the forms of law, like other piratical 
expeditions of Kyd and such men in earlier 
dfiys; but it had this distinction, that those 
men pretended not to attack the vessels of 
their own country, though they did sometimes 
make mistakes, as they gravely tell us, and 
did seize and run down a vessel of their own 
country, and after she had been sunk they 
"were very unhappy to find that thej' had com- 
mitted a mistake ! The United States do not 
pretend to say that tliese men are pirates in 
that light. We say, and we believe the court 
will sustain us in it, that under the laws of 
the United States, the offence of this man is 
piracy, that the act committed is piratical 
under the laws of the United States, and that 
the punishment meted out to it is the same 
as that of piracy, under the law of nations. 
You would not say that the slave trade car- 
ried on upon the coast of Africa was piracy. 
So, in this matter, we submit that this is a 
case of piracy in the legal sense. 

Before proceeding further, I may call the 
attention of the court, very briefly, to a case 
which is very much like this indeed," where 
similar piratical acts where conunitted — the 
case of the United States vs. Kliiitock, 6 
Wheaton's Reports, p. 144. In the syllabus 
it is stated : 

" Under the particular circumstances of 
" this case, showing tiiat the seizure was made, 
" not jure bfili, but ujiimo furandi, the com- 
*' mission was held not to exempt the prisoner 
" from the charge of piracy." 

" The act of the 30th of April, 1790, c. 80, 
" p. 8, extends to all persons, on board all 
" vessels, which throw off their national 
" character by cruising piraticallj', and com- 
" mitting piracy on other vessels." 

The facts appeared to be that the prisoner 
was a citizen of the United States, that he 
sailed as first lieutenant on the Yotiny Sj.>ar- 
t'tn, a vessel owned without the United States, 
and cruised uuder a coLumissiou from Aury, 



styling himself Brigadier of the Mexican Re- 
public, and Generalissimo of the Floridas, 
granted at Fernandin.i, after the United 
States government took possession of it. The 
prisoner was convicted in the court below, 
and his counsel moved in arrest of judgment, 
upon various grounds, one of which is '-that 
Aury's commission exempts the prisoner from 
the charge of piracy." Chief Justice Mar- 
shall, delivering the opiuiun of the court, 
said : 

*' So far as this Court can take any 
" cognizance of the fact, Aury can have no 
" power, either as Brigadier of the Mexican 
" Republic, a republic of whose existence we 
" know notliing, or as Generalissimo, of the 
" Floridas, a possession of Spain, to issue 
" commissions to authorize private or public 
" vessels to make captures at sea. Whether 
" a person acting with good faith under auch 
" commission, may or may not be guilty of 
" piracy, we are all of opinion that the com- 
" mission can be no justification of the facts 
" stated in this case." 

If our courts were so particular as to a 
commission executed by a foreign power, how 
little would they recognise a commission 
which aimed a blow at the very existence of 
I our government, and which aims a blow at 
j the very existence of this court, which sits 
only by viitueof the power conferred on it by 
the United States ? 

I may in this connection call attention to 
the fact that by the Constitution the power of 
issuing letters of marque and reprisal, is con- 
fined exclusively to the Congress ot the United 
States. Our government recognises no other 
power to do that ; nor lias it abdicated the very 
function of government within its own limits. 
I will call your Honors' attention to the case of 
Rose vs. Himely, in which the court said : (4 
Cranch's Reports, p. 27li.) " It is for govern- 
" ments to decide whether they will consider 
" St. Domingo as an independent nation, and 
" until !-ucli decision shall be made, or France 
" shall relinquish lier cluim, courts of justice 
" must consider the ancient state of things 
" as remaining unaltered, and the sovereign 
" power of France over that colony as still 
" subsisting." All this applies with ten-fold 
force, when you consider that these arc 
adjudications in reference to other nations, 
but that in the case now befoi'e you the point 
rises to the dignity of the national existence, 
and the question involves the recognition of 
the right of a portion of the country to revolt 
and det-troy the government. 

I do not say that this is piracy at common 
law, but piracy under the acts of Congiess, 
under which the defendant is indicted. i'ou 
will find on the back of the indictment a 
reference to the acts under which he is 
indicted. 

Mil. Hakrison. AVill you please tell me 
whether you proceed under all the statutes 
or under the one specified by the Di.--trict 
Attornev ? He specified the Srd section of 
the act of 1820. 



5§ 



^ Mr. Earle. I will read that section as it 
has been mentioned : 

"If any person shall, upon the high seas, 
" or in anj' open roadstead, or in any haven, 
" basin, or bay, or in any river where the sea 
•' ebbs and flows, commit the crime of rob- 
" bery, in or upon any ship or vessel, or upon 
"any of the ship's company of any ship or 
" vessel, or the lading thereof, such person 
" shall be adjudged to be a pirate." 

Under this act and the act of 1790, to 
which I have before referred, this indictment 
is drawn. I shall take up none of your time, 
gentlemen, in talking about the facts. The 
testimony of the defendant makes out the 
case. It is not denied that he was there ; it 
is not denied that he did the act. Some 
questions were asked his witnesses in regard 
to his character What is the honest man, 
whafistheman of character doing on the 
high seas, taking other peoples' property 
against the law ? He assisted in several 
captures ; after the Enchantress was captured, 
he was put on board as prize master, and he 
took her away. We show that he committed 
these acts. What is the reply? That he 
was an honest man. Has the reply any 
coherence or sense in it ? What is the man 
of character doing in such company ? What 
is he doing on such an exploit? If he fired 
the gun, does the fact of his previous honesty 
lessen the crime ? Does it not aggravate it ? 
Besides, do we not know how men of charac- 
ter fall ? Do we not know how, prior to the 
commission of murder, Dr. Webster had a 
good character ? Do we not know that one 
of the weaknesses of human nature, against 
which we are all to guard, is that men of the 
brightest character fall into crime ? I do not 
suppose the defence was urged seriously, and 
so waste no time upon it. 

I have not taken up your time, gentlemen, 
in going over the facts, because they are 
undisputed. There can be no question about 
them. My friend. Judge Kelley, will notice 
the law more particuhirly, in reply to the 
learned gentlemen on the other side. In con- 
clusion, let me hope that your verdict will 
be such that the law will be a redress, that 
you will perform your duty in that spirit of 
firmness, moderation, and justice, which 
should ever characterize a jury in our com- 
munity ; that while you mete out justice to 
the prisoner under the charge of the court, 
you will also reflect that the interests of the 
community' are in your hands, that the inter- 
ests of the government are in your hands ; 
and whilst you acquit him, if you can under 
the evidence and the charge of the court, if 
you have a fair, reasonable doubt of his, 
guilt, if you feel that doubt conscientiously 
and scrupulously, yet, if under the charge 
of the court, and under the superabundant 
evidence in this case, you believe him to be 
guilty, you will in the same spirit find him 
guilty. 



Mr. Harrison. — If your Honors please, 
before I proceed with my argument, I desire 
to furnish the court with some points of law 
on which we propose to rely. 

The points were handed to the court, and 
are as follows ; 

First. If the Confederate States of Amer- 
ica is a Government, either de facto or de 
jure, it had a right to issue letters of marque 
and reprisal ; and if issued before the com- 
mission of the alleged ofi"ence, the defendant, 
acting under the authority of such letters, 
would be a privateer, and not a pirate, and, 
as such, is entitled to be acquitted. 

Second. That, if at the time of the alleged 
ofi'ence, the Southern Confederacy, by actual 
occupation, as well as acts of Government, 
had so far acquired the mastery or control 
of the particular territory within its limits, 
as to enable it to exercise authority over, 
and to demand and exact allegiance from 
its residents, then a resident of such Con- 
federacy owes allegiance to the Govern- 
ment under which he lives, or, at least, that 
by rendering allegiance to such Government, 
whether on sea or land, he did not thereby 
become a traitor to the Government of the 
United States. 

Third. That, if at the time of the alleged 
oflfence, and the issuing of the letters of 
marque and reprisal iipon which the defen- 
dant acted, the Courts of the United States 
were so suspended or closed in the Southern 
Confederacy, as to be no longer able to 
administer justice and to enforce the law in 
such Confederacy, the defendant thereby 
became so far absolved from his allegiance 
to the United States as to enable him to take 
up arms for and to enter the service of the 
Southern confederacy, either on land or sea, 
without becoming a traitor to the Govern- 
ment of the United States. 

Fourth. That, if at the time of the alleged 
offence and his entering in the service of 
the Southern Confederacy, the defendant 
was so situated as to be unable to obtain 
either civil or military protection from the 
United States, whilst at the same time he 
was compelled to render either military or 
naval service to the Southern Confederacy, or 
to leave the country ; and in this latter event, 
to have his property sequestrated or confis- 
cated by the laws of the said Confederacy — 
such a state of things, if they existed, 
would amount, in law, to such duress as 
entitles the defendant here to an acquittal. 

Fifth. That this Court has no jurisdiction 
of the case, because the prisoner, after his 
apprehension on the high seas, was first 
brought into another district, and ought to 
have been there tried. 

Mr. Harrison. May it please your Honors, 
and you. Gentlemen of the Jury, it becomes 
my duty now, to open this case for the ac. 
cused. I should much have preferred if that 
duty had devolved upon some one else ; not 



56 



that I shall shrink from the discharge of it as 
Well as I can ; but that I acknowledge my 
inability to discharge it, as I think it ought 
to be. I hope I may be pardoned for saying, 
that I sincerely regret the absence here to 
day of my learned friend Mr. Cotfey ; not 
only upon his own account, but on that of 
the Government, for I know that he had 
thoroughly ami profoundly studied this 
case, (and it is to that perliai s more than 
any thing else, that his recent illness is 
ascribable^ and that he would liave brought 
to bear upon the argument, all the ingenuity, 
and ability, and research, which a strong 
mind, and a stout heart, and a clear, capaci- 
ous, independent, honest intellect, would 
have placed within his reach. I expected 
no mercy ; I should at least have received 
justice and fairness at his hands, which is 
all I ask. 

I know, too, tliat in the argument of this 
case, I have much to contend with ; not 
only in the skill and ability of the learned 
counsel who are opposed to me, but more, 
perhaps, if any thing, in the excited condi- 
tion of the public mind, and in the popular 
prejudice and prejudgment, which, in sur- 
rounding the questions now before you, 
may be said to surround even the prisoners 
themselves. Of this, however, I shall not 
complain. I have no right, in fact, to 
complain of it. At a time like this, that 
man must be something more, or something 
less than man, who could divest himself 
entirely of every thing in the shape of 
prejudice. It is only when prejudice usurps 
the place of reason, and turns a deaf ear to 
fact as well as argument, that the trial by 
jury becomes a farce, and thatjurors simply 
meet, not to deliberate and to determine, as 
they ought to do, and as I think you will ; 
but to render a foregone conclusion This 
is not the prejudice, I am sure, which I 
shall have to encounter at your hands. If 
it be a prejudice at all, like the Ghost in 
Hamlet, it is an honest prejudice, gentle- 
men, and I shall meet it honestly. 1 shall 
meet it as a man, who asks nothing and 
expects nothing, and who is entitled to 
nothing at your hands, but a fair and im- 
partial trial This much I do ask, however, 
and this much I shall expect to receive, as 
well upon your own account, as that of the 
prisoner. 

Gentlemen, we have met here to day, for 
the first time, and under circumstances of 
no little embarrassment and responsibility ; 
their honors to expound the Lw, you to 
judge of the facts of this case, and I, it may 
be, to argue both of them, if I choose, and 
as best as I can. And if, in the course of 
that argument, I should happen to take any 
position, or to utter any sentiment which 
you may not like — I do not know that I 
shall do so — but if I do, — I appeal to you, 
gentlemen of the jury, and I apj^eal to their 
honors upon the bench, to bear with me 



notwithstanding, and to hear me out. It is 
the boasted privilege of the law, that it gives 
to every man, however humble, or howso- 
ever criminal he may be, the right to be 
heard by counsel ; and nowhere, in my 
opinion, is that privilege more respected 
ami observed, than in the City of Philadel- 
phia. The fullest possible latitude of free 
and uninterrupted discussion, was afforded 
to the learned counsel, who opened the case 
for the Government ; and all I ask is, that 
a similar latitude of discussion, may be 
allowed to me. 

Gentlemen, before I proceed any further 
with the argument, I desire to call your 
attention to a few dates and events, which 
may possibly have some bearing upon the 
case On the 20th of December, IbliO, the 
State of South Carolinia, for reasons which 
are set forth in her Secession Ordinance, but 
which it is unnecessary to recur to more 
particularly, declared herself completely 
separated and withdrawn from the Federal 
Union. In this she was soon followed, first 
by Mississippi, then Alabama, then Florida, 
then Georgia, then Louisiana, then Texas, 
then North Carolina, then Virginia, then 
Tennessee, and lastly by Arkansas — leaving 
in all but 23 of the 34 States ( not to mention 
Missouri and Kentucky and probably Mary- 
land, which are at least divided,^ still 
faithful and loyal to the Union. The rest 
had all seceded. These States soon framed 
a Constitution, and soon formed a Govern- 
ment of their own, and entered into a social, 
and political compact, called the Confederate 
States of America. On the 12th of April, 
1861, Fort Sumter, one of the national 
fortifications of the United States, was taken 
and held by main force, and is still held by 
main force, by the State of South Carolina. 
This was followed by the President's Procla- 
mation of the 15th of April, declaring South 
Carolina, and the other States which had 
seceded, to be in a state of insurrection or 
rebellion; and ordering out the Militia, to 
the number of 75,000, (and afterwards, and 
by a similar proclamation of the President, 
the Naval force of the Government, was 
ordered out also) for the purpose of repress- 
ing it. On the 19th of April, 18G1, by an 
order of the President to that effect, the 
States of South Carolina, Georgia, Alabama, 
Mississippi, Louisiana, llorida, and Texas, 
were declared to be in a state of blockade. 
And, on the 29th of the same month, and 
by a similar order of the President, this 
blockade was declared to be extended to the 
States of North Carolina and Virginia. 
Subsequent to all this, other military Proc- 
lamations and preparations were from time 
to time issued, and made by the President, 
all of which, it is proper to add, have since 
received the sanction and concurrence of 
the Congress of the United States. 

So much for the proceedings on the part 
of the United States. But in the meantime, 



57 



gentlemen of the jury, the Southern Con- 
federacy has not been idle. Through its 
President, Mr. Davis, it has issued its proc- 
lamations from time to time. It lias elected 
its senators and representatives. It has 
twice convened its congress, and adjourned 
it. It has organized a fleet and army. It 
has voted supplies of men and money. It 
has declared war, and carried it on ; amongst 
the recognized, and not unfrequent modes 
of civilized warfare, it has authorized the 
issuing of letters of marque and reprisal by 
its President, and they h ive been issued by 
that President, and it was under, and by 
virtue of a cmnmission of that very descrip- 
tion, that this man was acting, at the time 
he was captured by the Albatross and 
brought here to be tried before your honors, 
upon a charge of piracy. And the question 
now submitted to your honors and to the 
jury is : whether he is protected at all, and 
how far is he protected by that commission? 
Is he a privateer, or is he a pirate? Is he a 
pirate, and thus shut out from all law, and 
entitled to ni> mercy either at your hands, 
or at the hands of any one else, (for that is 
the condititiu of tlie pirate, J or is he simply 
a privateer, and, thus, according to the law 
of nations and to the usages of all civilized 
warfare, entitled to be dealt with as a 
prisoner of war merely? 

Now what is a pirate ? A pirate, fsays 
Hawkins,) is he who commits some act of 
robbery or spoliation on the high seas, 
which, if committed upon land, would 
amount to a felony there. (Hawkins, b. 1, 
ch. 20, s. 3. 1 He is hostis humani generis — 
He is out of the pale of all social as well as 
municipal comity or protection ; and he is 
liable to be captured any where, and at any 
time, and by the private, as well as public, 
vessels of every nation. This is tlie com- 
mon law definition of a pirate ; so that the 
prisoner here, if a pirate, and if any act of 
piracy is proved upon him, is not only an 
offender against the laws of the United 
States, but he is an offender against the law 
of England, and against the law of France, 
and against the law of all civilized as well as 
christianized humanity, both here and else- 
where. On the other hand, if he be not an 
offender against England, and France, and 
other nations, and if he could not be cap- 
tured and punished, by England, and France, 
and other nations, no more is he an offender 
against, and no more could he be captured 
and punished fat least piratically speaking) 
by, the Government of the United States ; 
because a pirate in one place, is a i>irate 
everywhere, or not at all. 

But the Constitution of the United states 
has authorized Congress to define piracy, and 
Congress, by the 3d section of the Act of 
15th of May, lb20, (which is admitted to be 
the foundation of this indictment) has thus 
defined it: "If any person shall upon the 
" high seas, or in any open roadstead, or in 



" any haven, bas'n, or bay, or in .nny river, 
" wliere the sea ebbs and Hows, commit the 
'• crime of ro'jheiy in or upon any vessel, or 
'•upon any of the ship's company of any 
''vessel, or the liding thereof, such person 
" shiill be adjudged to l)e a pirate; and be'ng 
" thereof convicted, before a Circuit Court of 
" the United Stuies, for the District into which 
" he shitli he hroiiyhl, or in which he nhiill be 
"found, shall suffer d-afh." This statute, 
however, does not do aw;iy with the distinc- 
tion between a privateer and a pirate. It 
siniplj declares when a citizen of the United 
States or (itlier person shall be deemed to be 
guilty of pii-acy; but it does not say, and it 
could not say in fact, whether the prisoner 
here is a privateer or is a pirate ; whether he 
is a citizen of the United States, or a citizen 
of the Southern Confederacy, to the extent at 
least of piotecting him against a charge of 
piracy. This statute, 1 submit, was not 
intended to abolish piivateering, or to place 
all privateers upon the footing of pirates ; 
nor could it, in fact, have done so had it 
so designed. That is a matter for international 
compact; for public treaty between nation and 
nation; not for private or municipal legisla- 
tion. And when the United States, in 1855, 
was appealed to by France and England to 
abolish privateering by matter of treaty, she 
declined to do so. Certainly, so far as foreign 
nations are concerned, the United States 
would be estopped from taking the ground 
that her congress has abolislicil privateering. 
And whether the Southern Confederacy is 
simply still an integral portion of the Union, 
or whether it is a separate and independ- 
ent government of its own, de facto if not de 
jure, to the extent at least of protecting it 
against a charge of piracy-, is one of the very 
grounds of the defence, and is a question 
upon which I sliall presently ask permission 
to be heard more fully before the juiy. What 
I say now is, tliat a pirate, under the statutr, 
is the same thing as a robber at tlie common 
law, and, that to constitute robbery at the 
common law, there must be shown to have 
been the animus furandi, or the felonious as 
well as forcible taking of the property which 
is wanting here. The case of the United 
States V. Klintock (5 Wheaton, p. 150,) which 
was cited and commented on by Mr. Earle, is 
in fact an authority in our favor for there the 
distinction between a capture Jure belli and 
aiiimo furandi, between a bona fide belligerent 
cruiser and a mere freebooter or robber on 
the high seas, was expressly taken by Ch. J. 
Marshall, and is the same which is relied 
upon here. 

So much for the common law as well as 
statutory definition of a pirate. Now what is 
a privateer? Privateering, as I understand 
it. is simply a delegation of the war making 
power of the government, from the govern- 
ment itself to individuals ; and a privateer, 
or at least an authorized or commissioned 
privateer, is nothing more than a maritime 



68 



Tolunteer, or a commissioned naval warrior, 
fitted out by private enterprize, and sailing 
under letters of marque and reprisal from the 
government under which he sails. This is 
what 1 understand, may it please your honors, 
by the definition of a privateer. He is an 
enemy, it is true, and is liable to be taken as 
an enemy and to be dealt with as an enemy, 
by the adverse nation, and so far he may be 
said to resemble a common pirate ; but he 
differs from a pirate in this, that he is not the 
enemy of all humanity ; that he is only the 
enemy of tliat particular country which he is 
tlius at war with ; and above all, that he is 
entitled, when captured, to all the considera- 
tion and protection of an ordinary prisoner 
of war. He differs in fact in nothing from 
any other prisoner who may be taken flagranti 
bello. Nay, during a state of actual warfare, 
even a non-commissioned privateer, may 
attack and seize the enemy's property, when- 
soever and wheresoever he may choose, with- 
out violating any principle of international 
law ; being responsible only to the sovereignty 
of his own nation, which may retroactively 
ratify, and legalize or validate liis acts, how- 
ever unauthorized. For the doctrine and dis- 
tinctions upon this point, I refer your honors 
to Phillimore on Int. Law, p. 3'J3. (85 Law 
Lib. i:yU-V»7; lb. p. 141 ; Bynk, 2 Q. P. 1. 1, 
eh. 18. Vattel 1. 3, ch. 15, S. 229, 1 Rents 
C. 99. 2 Azuni's Maritime Law, 347. Spel- 
man Glossary in Voce. IMrata, p. 4<i0. Kud- 
ley's Civil Law, p. 2, ch. 1, s. 3, p. 127. 
This, gentlemen of the jury, is the distinction 
between a privateer and a pirate ; and 1 ask 
YOU to bear in mind this distinction, because 
if the prisoner here be a privateer, he cannot 
be a pirate ; and if a pirate, he is not a pri- 
vateer. If a pirate, he is guilty of a capital 
offence against the law, and you ought to find 
accordingly. If a privateer, he is guilty of 
no offence against the government, under the 
issue which you are sworn to try. If a priva- 
teer, he is liable, it is true, to be taken and 
dealt with as a public enemy, or as a prisoner 
of war, by the proper authorities, but you, at 
least, as privateer, have nothing to do with 
him. Your inquiry, and your sole inquiry, 
gentlemen, is, whether he is guilty or not of 
the piracy with which he is charged in this 
indictment? And this depends first, upon the 
validity or invalidity of the commission of 
marque and leprisal, upon which the prisoner 
acted; and, if that should be adjudged to be 
invalid, then, it furthermore depeiu.s, upon 
the motives of tiie prisoner in doing the act 
with which he is charged ; upon the situation 
and condition of the prisoner, at the time hfe 
did it; and, above all, upon the reasons which 
the prisoner had for thinking and believing, 
at the time, that that commission, whether 
valid or invalid, was at least sufficient to pro- 
tect him against the charge of piracy. If 
valid, there is an end of the case, of course, 
lor the act would then be lawful, or, at least, 
not piratical ; and eveu, if invalid, if he 
believed, and if he had reason to believe, and, 



more especially if be was' necessitated to 
believe, and to act upon the belief, that that 
commission was a good one, he would be still 
protected ; for, however as a general rule, 
and in a mere civil point of view, the maxim 
of the law is, that ignorance of the law is no 
excuse for any one ; yet there are cases, may 
it please your Honors, (and 1 shall endeavor 
to show that this is one of them), in which a 
well founded ignorance of the law, and a 
ditt'erence of opinion, and a diversity of 
authority as to what the law is, and even the 
absence, as in this case, of any positive law 
or express decision upon the subject, may 
well exempt, at least from criminal, if not 
from civil, responsibility. 1 think your Honors 
will find that there is an abundance of sound 
reason, as well as good authority, to this 
effect ; and especially is this true, where 
any element either of physical or of moral 
duress, where any actually existing danger, 
or any well grounded apprehension of a diinger 
of a present and pi'essing character, can be 
considered as blending with such ignorance ; 
for there one of the main essentials to every 
contract, which is the free will of the party, 
is supposed to be wanting. It n:ay be fairly 
assumed from the evidence, that letters of 
marque and reprisal were duly and regularly 
granted by the Southern Confederacy (so far 
as it had any authority so to grant them) to 
Captain Coxsetter, of the Privateer Jfff. 
Davis; and if adequate to the protection of 
Captain Coxsetter, they must be adequate to 
the protection of the prize crew of the Enchant- 
ress (one of whom is the prisoner now before 
you), and who were acting under the same 
authority. The only question is, whether 
they were adequate to the protection of Cap- 
tain Coxsetter, or any one else; or, in other 
words, whether the SouthernConfederacyis not 
so far a government de facto, if not de jure, as 
to authorize, or at least excuse privateeiing. 

If a government at all, may it please your 
Honors; if an organized and acting govern- 
ment, however wrongful; — if a government 
either de facto or dejure, it hud an undoubted 
and admitted right, 1 apprehend, to issue 
letters of marqe and reprisal, and to establish 
a system of privateering : for however some 
writers may have written against it, or how- 
ever some nations, at different periods, may 
have imposed restraints upon its exercise, yet 
privateering, as 1 understand it, is now recog- 
nized and approved, or at least tolerated and 
sustained, by every nation. Every man (says 
Vattel) "may, with a safe conscience, fit out 
" privateers in defence of his country during ii 
"time of war." Vattel, b. 3, ch. 15. s. 229; 2 
Azuni, p 3;7. 

But the first question is, whether the South- 
ern Confederacy is not a government de facto 
if not de jure, at least so far as to authorize 
privateering; or at least so far as to exempt 
its privateers from all the penalties of the 
crime of piracy ? 

Now, in the view which I take of this ques- 
tion, it is not very material to enquire into 



59 



the doctrine of secession ; by -wliicli I under- j stances, would be treated not onlj' as an 
stand, the right, or, at least, the assumed | absurdity but as a, nudum pad um— and hence 
constitutional right of any state, or of any , it was, that the first articles of confederation 



number of states, in the union, not to revo- 
lutionize, (because the right to revolutionize 
is not disputed), but to secede — that is to 
say, peaceably to go out of the Union — 
peaceably to remain out of the Union, and 
peaceably to form a government for them- 
selves — a government disconnected from, and 
totally independent of, the Union, if they 
should find it to their interest, or their honor, 
or their happiness, so to do ; and of which 
they themselves, of course, must be tlie judges. 
This is what I understand by the doctrine of 
secession ; and if that is conceded, all is con- 
ceded; if that is admitted by the government, 
tbe whole argument of the government falls 
to the ground, for there is nothing else in 
fact for it to stand upon. On the other hand, 
it does not follow, by any means, because 
the learned covmsel for the government deny 
the doctrine of secession (as I suppose they 
will,) that they will make out that these men 
are pirates. Not at all. Even if the doctrine 
of secession is not admitted, still the right to 
revolutionize is not denied. The warmest 
and ablest opponents of secession (Mr. Web- 
ster himself not excepted), have not hesitated 



to which Pennsylvania herself was a party) 
were afterwards superseded, and by that very 
constitution under which you are now exist- 
ing. Such is the nature of the right of revo- 
lution. It is the right of the few against the 
many — the right of a minority, to shake off 
the domination of the majority, in a proper 
case, and of which the minority themselves 
must be the judges ; for, otherwise, there 
would be no such thing in practice, as revolu- 
tion by a minority against the injustice or 
oppression of the majority. I put this ques- 
tion to the jury : Was it not by an exercise 
of this very principle of revolution that 
American independence was first established ? 
We were then in a minority also. We were 
then in a minority, and a far greater minority, 
than the Sotithern Confederacy now is. We 
had then, all told, only a population of about 
two millions; whilst that of the Southern 
Confederacy, as it is said, amounts, at this 
time, to at least seven millions. We were 
weaker in men, weaker in money, weaker in 
credit, weaker in unity, weaker in discipline, 
weaker, perhaps, in every respect, than the 
Southern Confederacy now is, and yet we 



to admit the right of revolution. In his j revolutionized notwithstanding. We not only 
speech in the Senate of the United States in revolutionized, but we succeeded by revolu- 
reply to Mr. Hayne, in 1830, Mr. Webster I tion in establishing the independence of 
uses this language. "If the gentleman had | America. And the first Congress which met, 
"intended no more than to assert the right ! after the declaration of independence in 1776 
" of revolution, for justifiable cause, /le would j not only claimed to legislate for a government 
■have said onli/ rcliat all a(jrcc to. But I can- | de facto, but de jure. And even before a rati- 



" not conceive, tliat there can be a middle 
"course, between submission to the laws, 
"when regularly pronounced constitutional, 
" on the one hand, and open resistance, which 
" is revolution or rebellion, on the other. I 
*' say the right of a State to annul a law of 
" Congress, cannot be maintained, but on the 
" ground of the unalienable rigid of man to re- 
'^ /list oppression; that is to say, upon the 



fication of the constitution by the people, and 
before that constitution in fact was even 
made, were not letters of marque and reprisal 
granted by the government of the United 
States — granted, I say, by the government of 
the United States, or I should rather say by 
the Continental Congress of the States, before 
the government itself was even formed, or 
before its fundamental law, at least, was ever 



'■'■ground of revolution. I admit that there is adopted. Letters of marque and reprisal were 
"an ultimate, violent remedy, above the con- | first issued and acted on in 1775; but it was 



" stituiion, and in defiance of the constitution. 
" which mag be resorted to, when a revolution, 
" is' to be justified. But I do not admit that, 
" under the constitution, and in conformity 
" with it, there is any mode in which a state 
" government, as a member of the Union can 
" interfere with and stop the progress of the 
" general government, by force of her own 
" laws, under any circumstances whatever." 
This is the doctrine of revolution, as laid down 
by Mr. Webster, in 1830, and as contradis- 
tinguished from that of secession. It is a 
principle, I believe, which is not disputed 



not until 1787, that the Constitution of the 
United States was ratified and adopted by a 
single State ; nor was it completely ratified 
and adopted until 1790. But in the meantime, 
the British trade in many places, and especially 
along the Island of Bermuda, and the Coast of 
Africa, literally swarmed with American pri- 
vateers. Nay, the first American flag which was 
ever hoisted in the service of the Continental 
Congress, was hoisted here, in this very City 
of Philadelphia, and on board of a privateer 
— on board of the privateer, the Alfred, and 
under the command of John Paul Jones— that 



any where, or by any one. It is not so much same Paul Jones who afterwards spiked all 



a gift of the government, as it is a preroga- 
tive of the people, and a prerogative which 
no government upon earth can control or 
fetter. So true is this, that even a compact 
by the people, never to revolutionize, at any 
time, or for any cause, or under any circum- 



the guns in two forts, and who, but for an 
accident, it is said, would have burnt two 
hundred ships at White Haven, in the North 
of England. 

But why do I refer to all this ? I simply 
advert to this to show you that the American 



60 



people are the very last people upon earth 
who ought to object to this doctrine of revo- 
lution, or to privateering as an incident to 
that doctrine ; and I do not understand them, 
as oV)jecting to it. Undoubtedly Mr. Webster 
did not object to it; undoubteilly the learned 
counsel who concludes this case for the govern- 
ment, will not object to it. However we may 
ditfer as to the proprietj' or impropriety of 
its exercise, or as to the practical application 
of the doctrine, as to the right at least, I am 
sure, we shall not differ. It is the great, in- 
herent, indispensable, unalienable, political 
right of self-defence — ;just as much so, as it is 
a physical or a brutal law of self-defence for 
the serpent, when stung, to sting again, or 
for the worm, when trod upon, to turn and 
rend you. 

Now, gentlemen, I do not want to be 
misunderstood. I beg you, and I beg my 
friends the reportt^rs here, who appear to be 
taking notes of what I am saying, not to 
misunderstand me, or misquote me. At a 
time like this, it is as much as a man's 
liberty, or even his life is worth, to be cor- 
rectly quoted. I know where I stand, and 
Jiow I stand, and how I want to stand in 
this case, and there I mean to stand, come 
what may of it — but nothing more. I do 
not stand here as a secessionist, or as the 
advocate of secession, nor is it necessary in 
fact, that I should do so. But what I say, 
and all I say, is, that, admitting secession 
to be all wrong ; and admitting that the 
Southern Confederacy had no right what- 
ever to revolutionize, still it has revolution- 
ized — it has not only gone out of the Union, 
but it has taken eleven of the States along 
with it, and it has left, at least, two more 
upon the fence top. It has framed a Consti- 
tution, and it has formed a government of 
its own. It has elected a President and 
Vice President, and all its officers, in all its 
branches, whether legislative, judicial, or 
executive. It has organized an army, and 
equipped a fleet. It has voted supplies of 
men and money. It has issued treasury 
notes. It has declared war, and carried it 
on, and it is still carrying it on, both 
persistently and effectively. It has recently 
made an exchange of prisoners with the 
general government. It has thousands of 
])risoners still remaining, either in actual 
cu.stody, or upon parole. It has been recog- 
nized, or at least treated by foreign nations, 
or by some of them, and by England in 
particular, and even by the United States 
herself, not only as a belligerent, but as a 
government. All of this, I say, it has done, 
and more besides ; and having done all this, 
may it please your honors, would it not be 
going too far to say, that the Southern 
Confederacy is not a government? is not a 
government cle facto, if not dejiire? is not a 
government, at least so far as to authorize 
privateering, or at least so far as to ex- 
empt its privateei'S, from all the penalties 



and consequences of being pirates ? After 
the declaration of Lord .John Russel, upon 
the floor of Parliament, that the Southern 
Confederacy was a belligerent, — after the 
refusal of the lords commissioners of the 
admiralty to make any distinction between 
a Confederate privateer, and a United States 
man-of-war's man, and after the whole 
course of the British Government upon this 
subject, would it now be competent to that 
government, to treat the privateers of the 
Southern Confederacy as pirates ? I pre- 
sume not. I ask your honors' attention to 
the fact too, that, by a regulation of the 
French (government to that effect, the pri- 
vateers and other vessels of the Southern 
Confederacy are permitted to remain unmo- 
lested, for the sjaace of twenty-four hours, in 
any of the ports of France — a space long 
enough in all conscience, for any ordinary 
vessel to unload and to effect a clearance. 
With all deference, too, I might very well re- 
fer to the recent ruling of one of your honors 
in the case of the General Parkliill, as fur- 
nishing additional evidence of the pretension 
of the Southern Confederacy to the character 
of a belligerent. The ground there taken by 
Judge ('adwalader was, that Peterson & 
Stock, of Charleston, being residents of the 
Southern Confederacy, and that Confederacy 
being in a state of hostility against the gov- 
ernment, that Peterson & Stock, therefore, 
whether personally loyal or disloyal, had 
forfeited all claim to national citizenship, 
and were no longer entitled to any proprie- 
tary status in a prize court. This I humbly 
conceived, at that time, and I still conceive, 
was a virtual recognition by your honor, of 
the Southern Confederacy as a belligerent. 
And did not the Congress of the United 
States, lately allow a claim of several 
thousand dollars, to the heirs or representa- 
tives of Paul .Jones ? and for what ? Why, for 
the privateering services of their ancestor, 
during the war of the Revolution ; thus 
recognizing and rewarding as a patriot, that 
man, whose memory, according to tlie argu- 
ment of our learned friends here, ought 
much rather to have been desecrated with 
the name of pirate. If this man is a pirate, 
upon what principle, or by what authority, 
did the Congress of the United States dare 
to appropriate one cent to the real or per- 
sonal representatives of .John Paul Jones ? 

But it is idle to cite authorities upon this 
point. It is useless to multiply examples to 
show your honors, that the Southern Con- 
federacy—whether right or wrong, is another 
question, and is not the question which I have 
now to deal with, or which I mean to have 
to deal with before the jury — that the South- 
ern Confederacy, at least practically speak- 
ing, is not a political nonentity or abstraction, 
but is a substantial and efl'ective government. 
How long it may remain so, is another ques- 
tion. It may be ultimately subjugated. It 
may soon be stripped of all its pretensions to 



61 



the character and position of one of the na- 
tions of the earth. But what I say, and what 
I submit to your honors, is, tliat, standing 
as it now does, and wliere it now is, is it not, 
I will not say preposterous, but impossible 
to maintain that tlie Southern Confederacy 
is not a government — a government de facto, 
if not de jure — a government not in theory 
only, but in practice — a government of law, 
of purpose, of policy, of principle, of action, 
of efficiency — a government of arts and 
sciences, of agriculture, of manufactures 
and even of commerce itself, to some extent, 
crippled and paralysed as it has been, and 
as it is, by the blockading power of the 
United States — a government in short, pos- 
sessing all the attributes, and exercising and 
exhibiting all the functions, of a tlioroughly 
organized and perfectly systematized body, 
politic ? And if this be not a government, 
what is? To show what constitutes a 
government and the different kinds of gov- 
ernment, see Puflfendorf, b. 7, ch. 2, s. 13, 
p. 645, and ch. 5, s. 3, p. 670. All govern- 
ment ("says Thomas Paine) is the result 
eitber of superstition, or of power, or of the 
common rights of man. AH government 
( says Mackintosh, ) with the exception of 
tlie United States, (for be makes an excep- 
tion of this government) is tlie result more 
of accident, than of art. If it bejiin in 
rebellion, it ends in revolution ; but wliat 
that revolution is to end in, wliether in 
monarchy, or oligarchy, or aristocracy, or 
democracy, or what not, it is hard to tell. 
This is the history perliaps of nine tenths 
of all governments upon the face of the earth. 
And with all deference to Mr. Mackintosh, 
when the American Revolution first started, 
it would have been pretty hard to determine, 
whetlier it was to eventuate in a democratic 
form of government, or in the establishment 
of another monarchy. But such, I submit, 
is the governme 't of the Southern Confed- 
eracy; and if it be a government at all — 
whether just or unjust, rightful or wrongful 
in its inception — if it be a government either 
<le facto or de jure, — then I humbly submit 
to your Honors, that nei her at common 
law, nor under the statute, nor according 
to the law of nations, can this prisoner be 
adjudged to be a pirate. 

I will now ask permission of your Honors, 
to cite a few authorities on this subject and 
I wi 1 tell your Honors, by and by, why it is 
that I refer to them. I refer in tlie first 
place to "Rawle on the Constitution," page 
292. "7/ (says Mr. Rawle j the majority 
''''of the people of a state d liberately and 
"peaceably resolve to relinquish the republican 
'\form of government, they cease to be members 
''of the Union." And then at' page 295, 
" The secession of a state from the Union 
" depends on the will of the people of such 
"siute.'^ And again at page 296, " But in 
' ' any manner by which a secession is to 
' ' take place, nothing is more certain, than 



I "that the act should be deliberate, clear, 
"and unequivocal. The perspicuity and 
"solemnity of the original obligation require 
"correspondent qualities in its dissolution. 
"The powers of the general government 
"cannot be defeated or impaired by an am- 
" biguous or implied secession on the part 
"of the State, although a secession may be 
" conditional. The people of the State may 
" have some reasons to complain in respect 
"to acts of the general government — they 
"may in such cases invest some of their 
" own officers with the power of negociation, 
"and may declare an absolute secession in 
"case of their failure. Still, however, the 
" sece^■sion must in such cases, be distinctly 
" and peremptorily declared to take place on 
"that event, and in such case — as in the case 
"of an unconditional secession, the previous 
" licjament tcith the Union, ivould be legiti- 
" mattly and fairly destroyed. But in either 
'''case the people is ihc only moving power.'' ^ 
This was from a gentleman of your own 
city, a gentleman of acknowledged ability 
and unblemished public, as well as private, 
character in his day, and who held the 
same high office under Washington himself, 
which my learned friend, Mr. Cofl'ey, now 
holds under President Lincoln. 

I refer next to the appendix to the Vir- 
ginia edition of Blackstone's Commentaries, 
published by St. George Tucker, in 1802, 
and from which I also have permission to 
read a few extracts. (See 1st Tucker's 
Blackstone, page 73, s. 13.) "The disso- 
" lution of these systems happens, when all 
"the Confederates, by mutual consent, or 
"some of them, voluntarily abandon the 
"confederacy, and govern their own States 
" apart ; or a part of them form a different 
" league and confederacy among each other, 
" and withdraw tliemselves from the con- 
"federacy with the rest. Such was the 
"proceeding on the part of those of the 
" American States which first adopted the 
"present Constitution of the United States, 
"and established a form of federal govern- 
"ment, essentially diflerent from that which 
" was first established by the articles of 
"Confederation, leaving the States of Rhode 
" Island and North Carolina, both of which, 
" at first, rejected the new Constitution, to 
"themselves. This was an evident breach 
" of tliat article of the confederation, which 
" stipulated that those ' Articles should be 
" 'inviolably oliserved by every State, and 
" ' that the Union should be perpetual ; nor 
" 'should any alteration at any time here- 
" 'after be made in any of them, unless 
"'such alteration be agreed to in the 
" 'Congress of the United States, and be 
"'afterwards confirmed by the legislature 
" 'of every State.' Yet the seceding States, 
" as they may be not improperly termed, 
"did not hesitate, as soon as nine States 
" had ratified the new Constitution, to super- 
"sede the former Federal Government, and 



62 



"establish a new form, more consonant to 
"their opinion of what was necessary to the 
" preservation and prosperity of the federal 
" Union." And again, at page 74, " Conse- 
" quently whenever the people of any State, 
" or number of States, discovered the inad- 
" equacy of the first form of Federal Gov- 
" ernment to promote or preserve their 
"independence, happiness, and imion, they 
" only exerted that natural riglitin rejecting 
"it, and adopting another, which all had 
"unanimously assented to, and of which 
"no force or compact can deprive the peo- 
"ple of any State, whenever they see the 
"necessity, and possess the power to do it. 
"And since the seceding States, by estab- 
" lishing a new Constitution and form of 
" Federal Government among themselves, 
"without the consent of tlje rest, have 
"shown that they consider the right to do 
" so whenever the occasion may, in their 
" opinion, require it, as unquestionable ; 
' ' we may infer that that right has not been 
' ' diminished by any new compact which t' ey 
"may have since entered into, since none 
" could be more solemn or explicit than the 
"first, or more binding upon the contracting 
"parties. Their obligation, therefore, to 
"preserve the present Constitution, is not 
" greater than their former obligations were, 
"to adhere to the articles of the confedera- 
" tion ; each State possessing the same 
"right of withdrawing itself from the oon- 
" federacy without the consent of the rest, 
" as any number of them do or ever did, 
"possess." 

******* 

"To deny this, woiild be to deny to 
"sovereign independent States, the power 
"which, as colonies, and dependant terri- 
" tories, they have mutually agreed they 
" had a right to exercise, and did actually 
"exercise, when they shook off the Govern- 
" ment of England, first, and adopted the 
"present Constitution of the United States, 
"in the second instance." 

Another instance to the same efll"ect, is to 
be found in the History of Massachusetts. 
On the 1st of August, 1812, Governor Strong 
of Massachusetts, addressed a letter to the 
three Judges of Massachusetts, in which, 
amongst other things, lie propounded to the 
Judges this question : "WhetJier it was for 
tlie President of the United States, or for the 
States themselves, respectively, to deter- 
mine the constitutional exigency upon which 
the militia of the States were liable to be 
ordered out into the service of the Federal 
Government." 

The reply of the Judges was, "that that 
right was vested solely in the commanders- 
in-chief of tlie militia of the several States." 
This question, it is true, was never formally 
adjudicated by the Judges, but this was 
their answer to the question ; and it was as 
much as to say, (so far as the Governor, and 
the Judges at least oould say soj that if the 



President enforced, or attempted to enforce 
this right, that was claimed for him, tlie 
State of Massachusetts would resist it; and 
she did resist it, for, in point of fact, she 
never furnished her quota, or even a soli- 
tary militiaman, I believe, under the requi- 
sition which was made upon her by the Pre- 
sident. What was this but secession, or 
revolution, or practical nullification, if you 
choose, and in the most ultra shape ? See 
Supplement to 8th Mass. Reports, page 54tJ. 
Doubtless your Honors have not forgotten 
how persistently the conscription and im- 
pressment scheme of Mr. Monroe, for rais- 
ing an army in 1815, was resisted and op- 
posed by five of the States ; how it first led 
to a legislative protest and resolutions on the 
part of Connecticut, strongly tinctured with 
secession and nullification; and how it after- 
wards led to that celebrated conclave called 
the Hartford Convention, which met on the 
1,'ith day of December, 1815, and whose 
members, I apprehend, were nothing more 
or less than a set of nullifiers or seqession- 
ists, under the cloak of federalism. See 
Dwight's History of Connecticut, pages 435, 
43(3, and 437. And when New Hampshire 
stood out, and continued to stand out, for 
nearly two years, against the adoption of 
the Constitution, no attempt was made to 
force her in by the rest of the States which 
had adopted it It might well be said, in 
fact, that the whole histoi-y of this country, 
tib urbe cnntlita, from first to last, is but a 
practical exliibition of secession, nullifica- 
tion, or revolution, at some time, and in 
some shape or other ; that it is, at least, the 
assertion of a principle, of whieli the present 
revolution is but the exercise. In his 
" Brief Enquiry into the nature and charac- 
ter of the Federal Government," page 124, 
the learned author CJudge Upshur,) says, 
" The principle that ours is a consolidated 
" government of all the people of the United 
" States, and not a confederation of Sovereign 
" States, must necessarily render it little less 
"than omnipotent;" and again, at page 125, 
" Let it be supposed that a certain number 
"of States, containing a majority of the 
" people of all the States, should find it to 
"their interest to pass laws oppressive to 
" the minority, and violating their rights 
" as secured by the Constitution. What re- 
" dress is there upon the prinoip/les of our 
" author? Is it to be found in the Federal 
'■ tribunals ? They are themselves a part of 
" the oppressing government, and are, there- 
" fore, not impartial judges of the powers of 
" government. Is it to be found in the virtue 
" and intellgence of the people ? This is tlie 
" author's great reliance. He acknowledges 
" that the system, as he understands it, is 
"liable to great abuses; but he supposes 
" that the virtue and intelligence of the 
" people will, under all circi^mstances, prove 
"a sufficient corrective. Of what people? 
"Of that very majority who have committed 



es 



"the injustice complained of, and who, ac- 
" cording to the autlior's theory, are the 
"sole judges whether they have power to 
" do it or not, and whether it be injut^tice or 
" not. Under such a system as this, it is a 
" cruel mockery to talk of the rights of the 
"minority. If they possess riglits, they 
" have no means of vindicating them. Tlie 
"majority alone possess the government; 
"they alone measure its powers, and wield 
"them, without control or responsibility. 
" This is despotism of the worst sort, in 
" a system like ours. More tolerable, by 
"far, is the despotism of one man, than 
" that of a party ruling without control, 
" consulting its own interests, and justify- 
" ing its excesses under the name of repul> 
" lican liberty. Free government, so far as 
"its protective power is concerned, is made 
" for minorities alone." 

The opiniom? of Mr. Calhoun, and of that 
peculiar school of politicians, of which he 
may be said to have been the founder, are 
too well known to require any comment. 

Judge Grier. Mr. Calhoun denied the 
right of secession as absolutely as any man 
in the North. 

Mr. Har:iison. But he contended as 
strongly as any man in the South for the 
doctrine of nullification. Mr. Calhoun, I 
presume, just at this time, would not be 
very high authority in Pennsylvania: but, 
I suppose, I may refer, without offence, to 
his Honor, Judge Sharswood's letter to Mr. 
E. Spencer Miller, of the 4th of October last, 
in wliich he speaks of this very doctrine of 
secession as an open question, and as a 
question which he himself had so regarded 
and so treated in his lectures for the last ten 
years. This opinion, I apprehend, is enti- 
tled to some weight, not only as emanating 
from an able judge and eminent jurist, but 
from one who, but a few days ago, was the 
judicial nominee and almost unanimous 
electee of every party in the city of Phila- 
delphia. And what would you think, if I 
told you, that the President of tlie United 
States was himself an avowed secessionist or 
revolutionist. In his speech in the House 
of Representatives, delivered January 12th, 
1848, Mr. Lincoln, then an honorable mem- 
ber from Illinois, used this language ; 

"Any people any where, being inclined, 
and having the power, have the right to rise 
up and shake olf the existing government, 
and form a new one that suits them better. 
This is a most valuable, a most sacred right 
— a right which we hope, and believe, is to 
liberate the world. 

"Nor is this right, confined to cases in 
which the whole people of an existing gov- 
ernment may choose to exercise it. Any 
portion of such people that can, mat/ revolu- 
tionize, and make ttieir own of so much of 
the territory as they inhabit. It is a quality 
of revolutions not to go by old lines, or old 
laws ; but to break up both, and make new 



ones." {Appendix, Congressional Globe, 
1st Session 30th Congress, page 94.) 

I will now tell your Honors why it is that 
T refer to these authorities. 1 do not cite 
them for the purpose either of advocating 
secession, or of endeavoring to make a se- 
cessionist of any of the jury, and, least of 
all, of attempting to secessionize either of 
your Honors ; but I do cite them for the 
purpose of showing that good men, and able 
men, and patriotic men, that the ablest and 
most respectable authorities, both North and 
South, have differed very widely on this 
subject ; that whilst some, (and especially 
of latej are ready to denounce secession as 
treason, and secessionists as traitors, yet 
others, and Mr. Rawle amongst the num- 
ber, have not liesitated to defend secession, 
not only as a legal right, but as a necessary 
consequence or corroUary from the Constitu- 
tion itself, as one of those reserved rights, (as 
they are called, J which, not being exi)ressly 
delegated by the Constitution to the Federal 
Government, nor expressly prohibited by 
that Constitution to the people, are there- 
fore considered, as being reserved by the 
Constitution to the people themselves. No 
one ever doubted either the patriotism or 
ability of Mr. Rawle ; and the time has been, 
perhaps, when I might have ventured to say 
the same thing of Mr. Tucker. Tliirty yeans 
ago, when Mr. Webster and Mr. Hayne dis- 
cussed secession, on the floor of the Senate, 
they did it openly — they did it fairly — they 
did it calmly and dispassionately— they did 
it like statesmen, and like gentlemen — they 
discussed it as a proposition, which was po- 
sitively afiirmed upon the one hand, and as 
positively denied upon the other ; and I 
must say, as I always sa d, and as I have 
always thought, that Mr. Webster, in my 
opinion, got l)y far the best of that argu- 
ment ; but still it never occurred to Mr. 
Webster, or any one else, to charge Mr. 
Hayne with treason, or to cause him to be 
prosecuted as a traitor, simply for entertain- 
ing or avowing secession sentiments. And 
how far it is treason even now, for a single 
State, or for a number of States in the Union, 
either to think secession, or to speak seces- 
sion, or even to act secession, may it please 
your honors, still remains to be decided. 
Martially speaking, and as a mere military 
safe-guard or precaution, peisons liave been 
arrested and imprisoned, it is true, since 
this war commenced, upon the bare suppo- 
sition of being secessionists ; but wliat I 
say, and what I submit to your honors is, 
that, civilly and legally speaking, this ques- 
tion is without a precedent in the history of 
this country. It is res iiitacta altogether. It 
has yet to pass into the judgment either of 
the Supreme Court of the United States, or 
any of its branches ; and the learned Judges 
of this Court, who are called upon to-day for 
the first time to decide this question, will no 
doubt do so, not only with a full sense of all 



64 



the legal responsibility which rests upon 
them, but with a due regard to all the cir- 
cumstances under which it is presented. 
They may tell you, perhaps, that this is a 
question about which men have honestly 
and innocently differed before, and about 
which they may honestly and innocently 
differ again. They will be reluctant, I am 
sure to tell you, that this man ought to be 
punished either as traitor or as pirate, sim- 
ply for entertaining or acting upon a view of 
the Constitution, which has the sanction of 
such a man, and such a statesman as Mr. 
"William Rawle. If secession, according to 
Mr, Rawle, is constitutional, much more is 
revolution, according to Mr. Webster, con- 
stitutional ; or rather, much more is revolu- 
tion independent of the Constitution, and in 
defiance of it, because it is a higher riglit ; 
because it is the inherent, and unalienable, 
and indefeasible right of every people, every 
where, and under every possible or conceiv- 
able form of government upon ear h And all 
of this, it seems tome — all this difference of 
opinion, and this discrepancy of authority, 
which I have shown you, bears materiality 
upon the point at issue ; for it bears upon 
the mind — the purpose— the quo animo - the 
supposed intent of the prisoner in doing the 
act with which he is charged, and the intent 
is every thing. It is the intention and the 
act combined which constitute the offence, 
if there be any. If the prisoner supposed, 
as Mr, Rawle did, that secession was con- 
stitutional, or if he believed, as Mr. Web- 
ster did, that revolution was constitutional, 
(and why not suppose that he believed so ?) 
then in neither case, I apprehend, ought he 
to be convicted and punished as a traitor, 
for having thus seceded or revolutionized, 
or for aiding in secession or revolution ; nor 
in either case, I imagine, can he be convic- 
ted and punished as a pirate, for having ac- 
cepted and acted under, a commission from a 
government, which is founded upon such se- 
cession or revolution. The point I make is. 
that he who perpetrates an act, which is no- 
toriously and admittedly wrong, commits a 
much greater offence than he who perpe- 
trates the same act, where it is of doubtful or 
even questionable criminality. It lias al- 
ways been regarded as an instance of ex- 
treme cruelty in Caligula, that he hung up 
his laws so high, and that he wrote them in 
characters so small, that it was impossible 
for his subjects to decipher them. Here 
there was no law at all to be deciphered, in 
characters either large or small — not one 
statutory enactment — not (me syllable in the 
Constitution — not one solitary decision of 
the ffupieme Court of the United States, any 
where or by any one, declaring secession to 
be unconstitutional or illegal. 

I make this further point before your 
honors, that where a government de facto, 
such as this is, (however wrongful,) acquires 
a mastery or ascendency over the regular 



government, not only by actual occupation, 
but by go vermental organization and the ex- 
ercise of governmental functions, that there a 
resident of such government dejacto, owes 
allegiance to the government under which he 
lives, or, at least, that by rendering allegiance 
to such government, he does not thereby be- 
come a traitor to, and ought not, therefore, to 
be treated as a traitor by the established gov- 
ernment. And why ? He may be compelled 
in self-defence to do so, and then, of course, 
he is not a traitor. Or he may do so of his own 
accord, and still he is not a traitor, for he 
owes at least a temporary, an involuntary, 
if not a voluntary allegiance, to the acting 
government. He may be taken and dealt 
with as a public enemy, or as a prisoner of 
war, or compelled to resume his allegiance 
to the government, but he cannot be treated 
as a traitor; any more than a colonial enemy 
of Great Britain, during the war of the Re- 
volution, could have been treated as a trai- 
tor by that government ; nor was he so 
treated by that government. If this man is 
a jiirate, simply for siding with, or for taking 
up arms for, or for accepting a commission 
from the government under which he lived, 
then I submit to your honors that every co- 
lonist, in 177G, who took sides with General 
Washington, against the government of 
Great Britain, ought to have been hung up 
as a traitor by that government. There, as 
well as here, it was a contest between rebel- 
lion and authority ; between loyalty and dis- 
loyalty ; between the new government and 
the <ild one. And the British government, ac- 
cording to the theory of its Constitution, 
had as much right to expect allegiance, and 
to exact allegiance from the colonies, as the 
government of the United States has to ex- 
pect, or to exact it from the States. This, it 
seems to me, is the present stdtiist in quo of 
the Southern Confederacy. It is no longer 
an insurrection. It has passed the j)oint of 
mere rebellion. It is impossible to assimi- 
late it to an insurrection, which has all the 
objection of a rebellion, without possessing 
any of the prestige or advantage of a regu- 
lar government. So far as its residents are 
concerned, and in respect of their obligation 
to submit to it, and, above all, in respect of 
their exemption from a charge of treason, 
for such submission — •jiioctd all this, I say, 
it is not only a government de facto, but it 
has assumed all the semblance, and propor- 
tions, and potentiality, and protection, of a 
regular government. It can no more be now 
assimilated to an insurrection or rebellion, 
than it could be assimilated to a mob or to a 
common riot. Even the newspapers of your 
city no longer speak of it as a rebellion, but 
as a "great rebellion," — As a great rebellion 
I suppose, in contr distinction to the little 
whiskey rebellion, which occifi'red in 1793. 
Besides, how would my learned friend, Mr. 
Coffey, set about indicting a community of 
seveu millions of human beings upon a charge 



65 



of treason ? Or how long would it take him, 
even with his learned colleagues to assist him, 
to prepare all the indictments in such a case ? 
Or how could he bring any of the ordinary 
rules or principles of criminal jurisprudence 
to bear upon a contest of this description ? I 
put these questions, may it please your hon- 
ors, almost in the identical language of Mr. 
Burke, iu his great speech upon the subject of 
"American Conciliation," in v hicli he says : 

"At this proposition, I must pause a mo- 
ment. The thing seems a great deal too big 
for my ideas of jurisprudence. It should 
seem, to my way of conceiving such mat- 
ters, that there is a wide difference in reason 
and policy, between the mode of proceeding 
on the irregular conduct of scattered indi- 
viduals, or even of ba: ds of men wlio dis- 
turb order within the State, and the civil 
dissensions which may, from time to time, 
on great questions, agitate the several com- 
munities which compose a great empire. It 
looks to me to be narrow and pedantic, to 
apply the ordinary ideas of criminal justice 
to this great public contest. I do not know 
the method of drawing up an indictment 
against an whole people I cannot insult 
and ridicule the feelings of millions of my 
fellow creatures as Sir Edward Coke insulted 
an excellent individual ("Sir Walter RaleighJ 
at the bar. I am not ripe to pass sentence 
on the gravest public bodies entrusted with 
magistracies of great authority and dignity, 
and charged with the safety of their fellow 
citizen.5, upon the very same title that I am. 
I really think that for wise men this is not 
judicious, for sober men not decent, for 
minds tinctured with humanity, not mild 
and merciful." 

Your Honors will bear in mind, that this 
speech was delivered by Mr. Burke, on the 
22nd of March, 1775, more than twelve 
months before the Declaration of Inde- 
pendence, and, at a time, when the Ameri- 
can Colonies, all told, both black and white, 
did not number a population of more than 
two millions. And what is the inference 
from all this ? Why, if America was not then 
indictable, at the suit of England, upon a 
charge of treason, how can the Southern 
Confederacy be now indictable, at the suit of 
America, upon a similar charge ? But, to 
come nearer home, in the late case of the 
United States vs. The General Parkhill, 
page 3, his Honor Judge Cadwalader, said, 
"Incidental hostilities against the United 
" States, including the capture of some of 
"their forts, have been followed by organ- 
"ized opposing hostilities, and counter hos- 
" tilities, on so large a scale, that the 
" present proportions of the contest resemble 
"those of a general war." And again, at 
page 8, " If the authority of an established 
"government has been suspended in a part 
"of its territory by insurgents, who have 
"temporarily substituted a revolutionaiy 
"government in it, other governments 



"which are not parties to the contest can- 
" not, without a breach of international 
"decorum, declare precipitately that the 
"case is that of civil war, as disting^^ished 
"from rebellion or organized war. But if 
"civil war, in truth, is its legal character, 
" such other governments may lawfully 
"treat the revolted insurgents, not as mere 
" {)irates, or outlaws, but as entitled, in the 
"war to the same immunities as ordinary 
" belligerents in a foreign war." And again 
on page 11, " Tlie foregoing remarks do 
"not suffice to define the legal character of 
" the contest in question. It is a civil war 
"as distinguished from such unorganized 
"intestine war as occurs in the case of a 
"mere insurrectionary rebellion." Here 
the distinction between insurrection and 
revolution : between, organized and un- 
organized civil war ; between mere rebellion 
and a government, which is the result of 
that rebellion, was well and forcibly taken 
by your Honor, and it seems to me, to be 
Imt a recognition by your Honor, in a 
different shape, of the position taken by Mr. 
Burke upon the same subject in 177-'>. 

Doubtless your Honors well remember the 
spirited contest in 1775, between the little 
American privateer the Randolph, and the 
British man-of-war the Yarmouth, in which a 
gallant son of one of the most prominent 
families of Pennsylvania, lost his life Now, 
even if the American colonies had failed to 
establish their independence, it would 
probably not have occurred to the descend- 
ants of Captain Biddle, of Philadelphia, that 
there was a piratical bar-sinister in the 
escutcheon of the Biddle family ; any more 
than it would have occurred to your Honors, 
whose ancestors I believe, as well as mine 
did some service in the cause of the Revo- 
lution, that we were descended from a line 
of traitors. Or, can it be, gentlemen, that 
the only difference between the rebel and 
the patriot, between a privateer and a corsair, 
is the difference between successful and un- 
successful revolution ? I apprehend not. I 
suppose, may it please your Honors, that a 
much sounder and a far more intelligible cri- 
terion, is to be found in the distinction which 
was taken by one of your Honors in the case 
of the General Parkhill : is to be found in the 
distinction between insurrection and revolu- 
tion, between organized and unorganiz d 
civil war, between mere rebellion itself, and 
a government which is the result of that 
rebellion — a government, which, however 
wrongful, or evanescent, so long as it is 
capable of exercising authority over, and 
demanding and exacting allegiance from its 
subjects, is capable of affording to those 
subjects, at least an exemption from a charge 
of treason for such allegiance. 

I trust your Honors will see what I am 
aiming at. I am not arguing before your 
Honors, that there was any necessity or 
ground for this rebellion ; for it might be 



66 



safely concederl, that there was none : but, 
I am arguincr. before your Honors, that rebel- 
lion lias taken place — that revolution has been 
the result of that rebellion — that government 
has been tlie result of that revolution, and 
that that government, whether right or wrong, 
is so far a government de facto if not de jure, 
as to authorize, or, at least, to excuse pri- 
vateering. This is what I contend for, and 
what I mean to contend for before your 
Honors ; and what your Honors and this 
jury, I conceive, would be perfectly well 
warranted in sustaining me in. I do not 
ask you either to recognize the Southern 
Confederacy, or to spare its subjects. No, 
capture them; imprison them; subjugate 
them if you can ; exterminate them if you 
choose ; but until you do so, and so long as 
this war shall last (whether it be long or 
shortj in God's name, treat them as they 
are treating you — treat them as you would 
expect to be treated by them — treat them as 
the law of nations and the dictates of 
humanity require, that they should be 
treated — treat them as captives, not as 
criminals — treat them as prisoners of war, 
not as traitors or as pirates. This is wisdom, 
policy, justice, law, humanity, mercy, 
Christianity. Take my word for it, this will 
go far to prevent retaliation, and to save 
the elfiision of blood upon both sides, which 
is always, according to Vattel, to be mainly 
looked to in a time of war. Whether it is a 
civil war, or a foreign war, or a simple in- 
surrection or rebellion, there is no difl'erence 
in the humanity which ought to be shown 
to prisioners. As a civil war between two 
parties of the same nation, it stands upon 
the same ground, in every respect, as a 
public war between two dilFerent nations. 
"Custom" fsays Vattel, b. 3, cli. 18, s. 
292,) "appropriates the term of ciril w r 
" to every war between the members of one 
"and the same political society. If it be 
"between part of tlie citizens on the one 
"side, and the sovereign with those who 
" continue in obedience to him on the other, 
"provided the malcontents have any reason 
"for taking up arms, nothing further is 
" required to entitle such disturbance to the 
" name of rivil mn, and not that of rehellion. 
" This latter term is applied only to such 
" an insurrection against lawful authority as 
" is void of all appearance of justice. The 
" sovereign imleed, never fails to bestow 
" the appellation of rebels on all such of his 
" subjects as openly resist him ; but when 
" the latter have acquired sufficient strength 
" io give him effectual opposition, and to 
" oblige him to carry on the war against 
" them according to the established rules, 
"he must necessarily submit to the use of 
" the term ' civil war.' " And again .section 
293,^ " a civil war breaks the bands of 
" society and government, or at least sus- 
" pends their force and effect: it produces 
" iu the nation two independent parties, 



" who consider each other as enemies and 
" acknowledge no common judge. Those 
" two parties, therefore, must necessarily 
" be considered as thenceforward consti- 
" tuting, at least for a time, two separate 
" bodies, two distinct societies. Though 
" one of the parties may have been to blame 
" in breaking the unity of the State and 
" resisting the lawful authority, they are 
" not the less divided in fact, l^esides, 
"who shall judge them? who shall pro- 
" nounce on which side the right or the 
" wrong lies ? On earth they have no com- 
" mon superior. They stand therefore in 
" precisely the same predicament as two 
"nations, who engage in a contest, and 
" being unable to come to an agreement, 
" have recourse to arms. 

"This being the case, it is very evident 
"that the common laws of war -those 
" maxims of humanity, moderation and 
" honor, which we have already detailed in 
" the course of this work — ought to be ol>- 
I " servedbyboth parties iu every civil war " 
! And what has the government done here- 
tofore with its prisoners ? What did it do 
' with them at Fort Hatteras ? If prisoners 
\ of war at Fort Hatteras, why not prisoners 
of war on board the Petrel, or the Enchaut- 
I ress, or any where else ? Or, if j^risoners 
: upon land, why not at sea ? Who ever 
I heard of such a distinction as is now at- 
tempted to be maintained by the govern- 
j ment of the United States ? Or why is it, 
I up to this time, that the first Southern 
prisoner, whether privateer or otherwise, 
' has yet to be punished as a traitor by the 
I government ? It is because tlie government 
j of the United States, however it may de- 
precate the existence of this revolutionary 
movement, or however determined or able 
it may be to crush it out, is yet unwilling — 
whether from motives of humanity, or from 
I motives of policy, is not material — to regard 
I this war as anything more than an unautho- 
I rized, but organized civil war, or to consider 
the captured subjects of the Southern Con- 
I federacy, whether privateers or soldiers, as 
anything more than prisoners of war. 

When Fort Hatteras was surrendered the 
other day, was it not one of the terms of 
that surrender, that its prisoners should be 
treated as prisoners of war ? I appeal to the 
learned counsel (.ludge Kelley) who con- 
cludes this prosecution for the government, 
to say, if it is not so. Beyond the news- 
paper statements to that effect, I have no 
evidence, I confess to show the fact, but it 
is not my fault. I have written to Wash- 
ington, I even telegraphed to Washington 
to obtain it, but I could not do so I appeal, 
therefore, to the learned counsel himself, to 
say, (if, forsooth, he is in the secrets of the 
government, J whether the articles of capit- 
ulation at Fort Hatteras, which were accepted 
and signed by General Butler, on behalf of 
the Government of the United States, were 



67 



not also accepted and signed by Commodore 
Barron, as Flag officer inthe service of the 
Confederate Navy ? 

Mr. Kelley. Do you appeal for a present 
answer ? 

Mr. Harrison. No, sir, it will do when 
the uentleman suras up. 

Here then, may it please your Honors, and 
in the most solemn form imaginable, the 
Government of the United States not only 
recognized the Southern Confederacy as a 
belligerent, but as a government ; as a 
government de facto if not de jure ; as a 
government having competent authority, 
throngh its proper officer, not only to dic- 
tate but to consummate the terms upon 
which a beleagured fortress was surrendered. 
And has not the Government of the United 
States recently made an exchange of prison- 
ers with the Southern Confederacy ? Again 
call for light upon the subject. What was I 
this, but another and a still more formal 
recognition of the Southern Confederacy as 
a government ? And after all this, may it 
please your honors ; and after much more 
of the same description, which I have not 
the time at present to recur to, would it not 
be the most astonishing thing in the world, 
if persons, thus treated by the government, 
as prisoners of war in one place, were to be 
hung up as pirates in another? Verily it 
■would sound well in the after history of the 
United States, that the sword of criminal 
justice, which had overlooked so shining 
a mark as the Honorable Charles James 
Faulkner, of Virginia, had been plunged at 
last, and for the first time, into the bosom 
of a poor seaman like William Smith ; and 
that tlie learned legal triumvirate wlio rep- 
resent the government on this occasion, had 
been instrumental in effecting so distin- 
guished a public execution. If they should 
fail, however, in that attempt fas I liope 
tbey will j they will at least have the conso- 
lation of exclaiming, 

" Nee tJiin turpe fuit vin>i, 
Qiiam conti'ti'lisse di coi um < st." 

So much for the first point, in the case, 
which is, that the Southern Confederacy is a 
government dr facto if not de jure, at least 
so far as to authorize privateering — or at least 
so far as to exempt its privateers from all 
the penalties of the crime of piracy. 

The next point is, that, whether the com- 
mission was valid or invalid, tlie prisoner at 
least believed, and had reason to believe, 
that it was valid, and that he is protected 
in law, by that belief. Whether he looked to 
the government itself, or to the power of 
that government, o>r to the conformation 
of that government, or to the operations 
and success of that government, or to the 
mode by which that government was estab- 
lished, whether founded in revolution or 
secession, or to the difference of opinion, as 
well as conflict of authority in regard to it — 
all, I say, was well calculated to produce 



the belief upon his mind, ("and it no doubt 
did), that he was acting under a commission, 
which, whether valid or invalid, was at least 
sufficient to protect him against a charge of 
piracy. When, on the morning of tlie 12th of 
June, 1861, he first saw and heard the letters 
of marque and reprisal publicly read by 
Captain Coxsetter, from the quarter deck of 
the Jeff. Davis, did he not believe, and did lie 
not have reason to believe, and would not 
the jury, themselves, under similar circum- 
stances, have believed, that Captain Coxset- 
ter was a privateer and not a pirate ; and that 
the commission and flag under which they 
sailed, were at least potential enough to 
shield them from a felon's grave ? This 
brings him within the principle wliich I have 
spoken of, that a well founded ignorance of 
the law, and a difference of opinion, and a 
discrepancy of authority as 'o what the law 
is, and especially in tlie absence of any posi- 
tive law or express decision upon the sub- 
ject, may well exempt, at least fiom criminal, 
if not from civil responsibility. The maxim, 
that every man is presumed at his peril to 
know the law. applies only to the law, either 
as it is actually written, or as it is actually 
expounded by the judges; either to the lex 
scrijita or to the lex judicata of the country. 
Here there was neither. Where is the law, 
or where is the constitution, or where is the 
judicial exposition, either of law or consti- 
tution, declaring secession to be unconstitu- 
tional or illegal ? No where — no where. I 
undertake to assert, that it is no where. The 
courts have said, and very properly, that it 
is not comjjetent to any State in the Union, 
and under the Union, and under the Consti- 
tution of that Union, to refuse obedience to 
its laws, and still remain in it ; but if ever 
the question which 1 am now considering ; 
if ever the question, as to how far it is trea- 
son for any State, or for any number of 
States in the Union, not only to revolution- 
ize, but to secede — if ever this question, I 
say, has been judicially acted upon or de- 
cided, I have yet to be apprised ot it ; and I 
challenge the production by the government 
of a solitary decision to that elfect. 

So much for the second ground of the de- 
fence ; and this is a ground, gentlemen, upon 
which you amy readily acquit the jirisoner, 
without recognizing the right of the Southern 
Confederacy as a government, to authorize 
privateering. In the case of the United 
States rs. Hanway, (2 Wallace, Jr., p. 2()(JJ 
ignorance of the acts of Congress which ho 
was charged with violating, was one of the 
very grounds assigned by your Honor, Judge 
Grier, for the acquittal of the prisoner. 

The third point I shall make is, that, 
whethm- the commission was valid or invalid, 
and whether the prisoner believed or did 
not believe that it was valid, he is still pro- 
tected ; and this concedes every thing to 
the government, save the guilt of the ac- 
cused. What I say now is, that he had no 



68 



discretion or volition in the premises ; that 
in legal contemplation, it cannot be said that 
he ever consented to become a privateer. 
"Consent," (^says Mr. Story, J "is an act of 
reason, accompanied with deliberation ; the 
mind weighing as in a balance the good 
and the evil upon both sides." Can it 
be said that he ever gave sucli a consent 
in this case ? Look to the sequestration 
and confiscation laws of the Southern Con- 
federacy. Was there no compulsion in that ? 
Or look to the militia sy tem of that Con- 
federacy, which requires every able bodied 
man, over the age of sixteen, and under the 
age of sixty, to render military or naval 
duty or to quit the country. Was there no 
compulsion in that either ? How far he may 
have voluntarily submitted to the vis major, 
or to the over ruling necessity which sur- 
rounded him, it is impossible for us to tell, 
nor is it necessary, in truth, that we should 
tell. It is enough for you to know, that he 
was surrounded, in fact, by such neces ity; 
that he was acting under a physical, or at 
least under a moral or legal duress, which 
there was no resisting ; and that he had no 
alternative un<ier the circumstances, but 
submission or flight ; and flight, it may be, 
was impossible. If his property and his 
home were in the South, he may not have 
been able to afford to leave them. It may 
have been utter, absolute, startling, staring 
ruin forhim tothinkof leavingthem; or, if his 
family and his friends lived South, he may 
have been anxious, if possible, to get them 
away from there, but had not the means of 
doing so. What then ? Would you hang 
a man as a traitor, simply for sticking to a 
country where rebellion is, when it was not 
in his power to get away from it, and when 
he was compelled to submit to it if he staid. 
Was not this the condition of this prisoner 1 
He owed, at least, a temporary, an involun- 
tary, if not a voluntary allegiance to the 
government under which he lived. That 
government was strong enough to enforce 
its laws. Right or wrong, it was not only 
strong enough to enforce its laws, but it did 
enforce them. It exacted his allegiance, 
and it demanded his support — and he was 
bound to pay it — and if he was bound to pay 
it in one shape, he had a right to pay it in 
another. If he was bound to enlist as a 
volunteer, or as a soldier in the Confederate 
army, he had a right to become a privateer; 
because privateering, as 1 understand it, is 
but another form of fealty ; but another 
mode of manifesting his allegiance to the 
reigning government. And just precisely 
such consideration as would have been shown 
to him as acaptured volunteer or soldier in the 
Confederate service, ought to be shown to 
him as a captured privateer. Nothing more, 
nothing less. If, according to the ruling in 
the case of the Parkhill, a mere residence 
South, without more, is sufficient to dena- 
tionalize such resident as an American 



citizen, then I put it to you, gentlemen" of 
the jury, and I put it to their Honors upon 
the bench, what was it possible for this 
prisoner to have done, but to go over, heart 
and hand, body and soul, willingly or un- 
willingly, to the Southern Confederacy, if 
it was not in his power to get away from it. 
I have a right to presume in this case, from 
the humble circumstances and condition of 
the prisoner, that it was not in his power to 
get away from it. On the question of duress, 
I refer your Honors to 1 Story, Eq. s. 222, 
Pnffendorf (Barbeyrack's note) 16. ch. b", 
s. 3 ; Grotius lib. 2, ch. 11, s. 4 and 5, and 
to his Honor, Judge Cadwalader's opinion, 
and the authorities cited by him in the late 
case of Charles A. Greiner ; see Leg. Int. 
10th of May, 1861, p. 150. 

"All consent," (says Grotius,) "sup- 
poses three things. 1st. A physical power. 
2nd. A moral power, and 3rd. A serious and 
free use of them." Now I apprehend, may 
it please Honors, that a Unionist South, 
just at this time, would stand about as poor 
a chance of speaking and acting what he 
thought, as a Secessionist would here in 
Philadelphia. In either case, he would have 
to lie low and keep dark ; to study the 
philosophy of reticence ; and to have a 
thorough knowledge and comprehension of 
that little cabalistical word called ''nmm." 
If he did not, he might possibly find, in his 
case, that the transition from Philadelphia to 
Fort Lafayette, was quite as sudden and un- 
expected as that of a certain Christopher Sly, 
who fell asleep upon the hard pavement, and 
woke up in the bed chamber of a nobleman. 
Or possibly, the obligation to submit in this 
case, might be well referred to that lex neces- 
sitatis which is spoken of by Vattel, and 
which was held to have justified the rape of 
the Sabine women. Certainly, the instinct 
of self-preservation, is quite as strong as 
that of the propagation of the species. 

I rely upon your Honors' decision in the 
case of Greiner, for two purposes, 1st. to 
show that actual force, or its equivalent, is 
a good legal defence here for the accused ; 
and then, I contend, in this connection, that 
the sequestration, confiscation, and militia 
laws, and army bill, and the various procla- 
mations, and other proceedings of the 
Southern Confederacy, were tantamount in 
law to such a force ; and 2nd, to show that 
the obligation to submit to any government, 
and tbe right to receive protection from that 
government, are convertible and corrella- 
tive terms. It is of the essence of every 
government ; it enters necessarily and in- 
evitably into every man's conception of any 
government, that whilst it receives support 
upon the one hand, it is bound to afford 
protection upon the other ; and the moment 
you destroy or suspend the one, you annihi- 
late or suspend the other ; so, that, when 
the courts of the United States became com- 
pletely suspended or closed in the Southern 



69 



Confederacy ("as it is a matter of notoriety 
as well as proof, that tliey have been for 
months, and that they still are,) so as to he 
no longer able to administer justice, and to 
enforce the law in that Confederacy, tliat 
then a resident of such Confederacy, became 
absolved, at least so far absolved from all 
allegiance to the government of the United 
States, so as to place him upon the footing 
(if a public enemy, and not of a traitor, to 
that government, because he rendered that 
allegiance, which he was bound to render 
to the government under which he lived. 
This, it seems to me, is the plain English 
and purport of you Honors' decision in the 
(xreiner case ; and Vattel's Law of Nations, 
b. 3, ch. 18, s. 200, is to the same effect. 
It is said in Martin vs. Hunter's Lessee, 
(1 Wheaton, 3G3, ) that when judicial pro- 
cess is obstructed by any opposition, which 
it cannot overcome, that government is no 
more. I know your Honor, Judge Cadwala- 
der, said, in the case of the Parkhill, that the 
right to revolutionize could not be considered 
here, until the power to revolutionize had 
been established. Very well. But my 
answer to that is, first, that I am not con- 
sidering the right to revolutionize but the 
effect of revolution ; and second, even if it 
were neccssarj^ to consider the right to revo- 
lutionize, and if that right were only con- 
siderable after the power to revolutionize 
lias been established, still, I say, that that 
power has in fact been established, or at 
least so far established by the Southern Con- 
federacy, as to bring it fully and fairly within 
the qualification or restriction which was laid 
down by your Honor in the Parkhill case. 

So much for the third point of the defence ; 
and this is another ground upon which the 
jury may acquit the prisoner, without con- 
ceding the right of the Southern Con- 
federacy to establish privateering. 

Fourth and lastly : — This court, I contend, 
has no jurisdiction of this case. The Statute 
says, that the prisoner must be tried "before 
the Circuit Court of the United States, for 
the District into which he shall be brought, 
or in which he shall be found." This means, 
into which he shall,/irs« be brought, or where 
he shall ^' /-.si be found, and this was neither. 
He was neither found in Philadelphia, nor 
was he brought to Philadelphia in the sense 
of the Statute. On the contrary, before 
coming here at all, he was twice brought 
into Hampton Roads, within four or five 
hundred yards of the Virginia coast, and 
there he was detained as a prisoner on 
board the Albatross, for several days. This 
gave jurisdiction to the Circuit Court of the 
United States, for the Eastern District of 
Virginia; and, although that court is now 
practically suspended, and there is no 
longer any Judge thereof in Virginia, still, 
accoi-ding to your Honors' decision in the 
case of Greiner, its jurisdiction, at least, is 
unimpaired. The Statute could not have 



intended to use the word ' found ' as 
synonymous with 'apprehended.' If it did, 
still the prisoner, I say, was not apprehended 
in Philadelphia, but on the high seas, and 
as he could not have been tried where he 
was first arrested, he ought to have been 
tried in the District into which he was 
first brought, which was the Eastern District 
of Virginia. This is all I have to say upon 
the question of jurisdiction. 

And now, may it jjlease your Honors, I 
have a word or two to say to the learned 
counsel, Mr. Earle, who opened the argu- 
ment for the prosecution. I have not suf- 
fered myself to be drawn into a discussion 
of the origin of this unfortunate war. 
Whether the blame is on the North, or on 
the South, or a little on both — whether it is 
the natural and necessary offspring either 
of slavery, or of anti-slavery propagandism 
—whether it originated in Southern ultra- 
ism, or in Northern abolition— whether it 
originated with the party to which the learned 
counsel himself belongs, or some where else 
— these are questions, I say, which I will not 
permit myself to be dragged into for a mo- 
ment, not, even, if such an example had been 
set me by the learned counsel. If I did, 
however, I might probably hold the learned 
counsel himself to his full share of responsi- 
bility in the matter. I might possibly 
venture to suggest to him, that it is he 
himself — that it is such ultraists and ex- 
tremists as he is, both North and South, 
and in the pulpit as well as out of it — that 
it is such virulence of language, and such 
intolerance of opinion, as we have heard to 
day, (and this is notthe first time, and in this 
very Court House, that I have heard such 
language from that counsel}, which has 
done more to sever the cords of brotherly 
love, and to shake the foundations of this 
government, than any thing else. But, be 
this as it may, I assure the learned counsel 
of one thing, that no one regrets this un- 
fortunate condition of the country more than 
I do, or would rejoice to see it remedied, 
more than I would. It is the last picture 
upon earth which I ever expected, or de- 
sired, or designed to contemplate. And if 
ever the learned counsel thinks proper to 
erect an altar to the manes of a broken 
Union, (if broken indeed it bej, I promise 
to be as honest and as earnest a worshipper 
at that altar, and to shed as few crocodile 
tears over its precious relics, as the learned 
counsel for the government or any one else. 

Two years ago, when I removed from 
Virginia to Philadelphia, all fat least com- 
paratively speaking) was peace, tranquillity, 
happiness, power, Union — a Union not in 
name only, but in fact — a Union, it is true, 
to some extent, discordant and belligerent, 
but still a Union. But now what is it ? In 
the last few months, the pistol has taken 
the place of the ploughshare — peace has 
been exchanged for war — and the sword, as 



70 



it leaps to-day from its scabbard, hardly 
knows, whether it is to be plunged into the 
, l)osoni of an enemy, or a stranger, or into 
^ that of a father, or a brother, or even of a 
beloved child. But I will not pursue this 
picture any farther. It is sickening, sad- 
dening, heart-rending, woful, wretched in 
tlie extreme. It is a spectacle, over which 
angels well might weep, and devils laugh. 
15 at the learned counsel (Mr. Earlej made a 
singular argument before the jury. I would 
not do him any injustice. I would not 
detract from the force of his argument, if I 
could. If it was not so able an ai'gument 
as I have sometimes heard from him ; it was 
at least well calculated to produce all the 
lodgment and effect, which it was designed 
to have. It was an argument, too, to which 
1 listened, I confess, both with pain and 
])leasure ; with pleasure, because I trust I 
can appreciate the well rounded periods, 
and the flowing diction of that counsel, 
liowever we may differ, as to the purpose or 
the principles, to which he is endeavoring 
to apply them ; with pain, because it is a 
matter of no little regret to me, I confess, 
that one so gifted as the learned counsel, 
should have made this the occasion of such i 
a display, as we have heard to-day ; that he 
should have lost sight of the fact entirely j 
(as he seems to have done) that this is not I 
a hustings, or an arena, but a Court of j 
Justice ; and that this man, that this unfor- 
tunate individual now before you, whether ' 
lie be privateer or pirate, rebel or patriot, i 
guilty or innocent, is nevertheless entitled 
to a fair and impartial, and dignified, and 
decorous trial, at the hands of this jury. | 
How far it may comport with such a trial, oi- 
with the dignity or magnanimity of the 
]irosecution, not only to condemn but to 
revile ; not only to prosecute with severity, 
but to pursue with venom ; and even to 
appeal to prejudice as well as reason to 
secure a verdict, — I leave it to the learned 
counsel for the Government, when profes- 
sional rivalry has subsided, and when the 
passions of this day have passed away, to 
determine for himself. My learned friend, 
Mr. Coffey — I know him too well to think 
the contrary — would not have imitated the 
example which has been set him by his 
learned colleague. He would have done his 
iluty, I am sure, but nothing more ; and 
whilst he discharged that duty skillfully 
and faithfully, as he ought to have done 
(and as 1 think he would) lie would not 
have encroached one hair's breadth, wan- 
tonly and unnecessarily, upon the feelings or 
the rights of those, whom accident, or mis- 
fortune, or even crime, may have thrown 
across his path. If lie felt any indignation, 
or manifested any indignation, ujion the 
occasion, it would rather have been against 
tiie heads and front of the offence, (who are 
not before yon) and not against this humble 
individual, who, whether he be guilty, or 



whether he be innocent of the offence, is but 
an instrument in the hands of others. This 
is the part of manhood, and of noble nature 
everywhere ; and my learned friend Mr. 
Coffey (I would he were here to hear me 
say so^ is every inch a man. He would 
liave recollected too, I am sure that there 
are others, besides the prisoner, who are 
interested in the verdict you may render. 
Would to God that it were otherwise ! 
Would to God, gentlemen, that whenever it 
becomes necessary to enforce the severity of 
th<> law, the blow could fall only upon the 
guilty, or upon those at least who are sup- 
posed to be. But this we know to l>e 
impossible. Constituted and circumstanced 
as we are, it is impossible. The meanest 
wi'etch that crawls upon the face of the 
eavtli has still a claim upon the sympathy 
of some one. You cannot separate him ; 
you cannot alienate him ; you cannot tear 
him from that sympathy. You cannot touch 
I a chord in his bosom which doef? not vibrate, 
j by a thousand feelings, and with a thous- 
j and sympathies and emotions, through the 
hearts of others. Place him where youi 
may, dishonor and degrade him, as jon 
j choose ; in all time of his tribulation ; in all 
time of his distress ; in prosperity and in 
j adversity ; in guilt, or in innocence ; in 
I honor and dishonor ; in weal or in woe, he 
j is still the centre of a circle, which he calls 
liis own, and to which kindred, and liome, 
' and friends, and family, and a thousand 
j interesting and endearing associations and 
relations, have indissolubly and forever 
' bound him. Into this little sanctuary of 
this humble prisoner, my learned friend 
(Mr. Coffey^ would no more obtrude with 
ruthless stei), than he would tread too hard 
upon the cradle of an only child, ( if he had 
one, ) or upon the grave of a departed 
mother. 

Gentlemen, if you have a doubt as to the 
guilt of the accused, you ought to Hcquit 
him. The law requiies no sacrifice ; it de- 
mands no victim at your hands. It would 
much rather that ninety-nine guilty persons 
should escape from punishment, than that 
one innocent man should be made to suffer. 
If you have a doubt therefore, you should 
acijuit. Absolute, mathematical, or meta- 
physical certainty, is not to be expected or 
refjuired. But still if you have a doubt, 
upon your minds, a solitary doubt in reason, 
as to the guilt or innocence of the prisoner, 
it is your duty to acquit him. The law 
requires you to give him the benefit of 
every doubt, whether as to law or as to fact, 
whicli the case admits of. And it seems to 
me, it would be difficult if not impossible 
for any unprejudiced, or even prejudiced 
mind to say, that this case, in all its 
branches, and upon all the points which I 
have stated, fand which will be no doubt 
much more fully, and much more forcibly 
presented by my learned colleague, Mr. 



71 



Wharton who concludes the defence of the 
accused,) is utterly free from all that doubt 
which entitles him to an acquittal at your 
hands. I hardly think you will be able to 
come to this conclusion. 

Gentlemen, I have no ground in this case 
for any personal appeal to you for the pri- 
soner. He has none of those appliances 
either of wealth or station or connexion, 
which sometimes lend an interest and im- 
portance to a case like this. He stands 
here alone, and he looks to you alone for 
all that portion either of justice or of mercy, 
which is left to him upon earth. So far, 
however, I do appeal to you, and I have a 
right to appeal to you in his behalf. To 
you, at least, it is a matter of little conse- 
quence, whether he is an ex-minister of 
France, or a Senator of the United States, 
or an humble pilot from Savannah, rocked, 
almost from his infancy, upon the sea itself. 
The law knows no one, and ought to know 
no one, in the administration of criminal 
justice. It punishes all alike. It looks 
with an eye single to the crime, without 
reference to the condition of the criminal. 
It metes out to every man, and every 
where, the same measure and degree of hu- 
man justice; "good measure, pressed down, 
shaken together, and running over." This is 
all I ask, or which I have a right to ask for 
the accused. With these remarks, gentle- 
men, so far as I am concerned, and with 
many thanks to you, as well as to their 
Honors upon the bench, for the patience and 
kindness with which you have been pleased 
to listen to me upon this occasion, I submit 
the case of the prisoner into your hands. 

Mr. Wharton. May it please your 
Honors, Gentlemen of the Jury, alter the 
very full, and, I may say, exhaustive argu- 
ment of my learned colleague, it would 
appear almost unnecessary for me to con- 
sume more of your time in the defence of 
this case. This man, however, who sits 
behind nie, and who was a perfect stranger 
to me until about three days ago, has 
asked my professional services in his be- 
half, and in the discharge of my profes- 
sional duty I have accorded them to him. 
Feeble although that effort may be, that 
effort will be now rendered, as briefly as I 
can make it consistently with my sense of 
duty. 

This case, gentlemen, commends itself to 
your consideration not only by reason of 
its gravity, but of its novelty. It is a grave 
case, because the happiness of a Northern 
wile, of a littb' boy at a Northern college, 
and of an aged ancestor yet living at the 
South, hang upon your verdict. Besides 
that, the life of one who has heretofore 
passed among his fellows as an honest, 
industrious, and good man, hangs upon it. 
The novelty of the question, also, com- 



mends it to your grave consideration. It 
is the first time, thank God, in the history 
of our country, in which such a question 
has been presented to the determination of 
a jury. Since the formation of our happy 
constitution of government, no man has 
been tried as this man is now tried. I 
believe it to be the first case in which one 
has stood before a jury of his countrymen, 
his life resting upon their verdict, for 
alleged disobedience to such a law as this 
which is now on the statute book. We 
have hud heretofore in the history of our 
country, no organized civil war. We have 
had cases of partial rebellion ; the history 
of our own Commonwealth, unfortunately, 
furnishes the two most prominent instan- 
ces. You have heard of the insurrection 
in the W^est, at Pittsburgh, and of the 
Northampton insurrection; they both oc- 
curred within the limits of Pennsylvania. 
They were the resistance of armed bodies 
of men (not, however, claiming to them- 
selves the functions of civil government), 
against the laws of the United States, 
'i'hey were dealt with, and properly dealt 
with, as traitors, and were convicted as 
such. But if this is the first instance in the 
history of the United States of America, 
in which a man has been placed in a court 
of justice to answer with the penalty of his 
life for an offence such as that with which 
this man is charged, and who has presented 
to a jury the defence which he does, I trust 
it may be the last arising out of an organ- 
ized civil war in the United States of 
America. There is everything, therefore, 
gentlemen, in this case, to commend it to 
your careful and conscientious deliberation ; 
and I am sure that neither you nor either 
of the learned Judges on the bench will 
criticise the counsel in the cause for the 
consumption of time in its discussion, or 
for the presentation of points which may 
be — many of them, I hope not all of them 
— foreign to your prepossessions and your 
opinions as citizens. I am sensible of the 
difficulty of arguing such a case as this 
before a jury of citizens of the United 
States of America, and before Judges who 
have been sworn to support the Constitution 
of the United States, and faithfully to ad- 
minister her laws. At the same time, 1 feel 
entirely confident that if I can satisfy those 
Judges or yourselves, gentlemen, that the 
existing laws of the United States do not 
mean such a case as the present; if, on a 
fair consideration of the question presented, 
the result should be reached that this man 
is not within the spirit of the existing 
statutes of the United States, whatever 
your political opinions may be in regard to 
the course of those persons at the South 
with whom this man was associated, you 



72 



^'ill cheerfully render a verdict of acquittal 
and leave it to the Conoress of the United 
States to meet the exigency of the case by 
after-legislation. 

I am quite justified, I think, in saying 
that we are in a state of tilings and in a 
condition of the country tlnit was hardly 
antici])ated when our government was 
formed and our existing laws were enacted. 
No man doulits that we are in a state of 
war in the United States of America. 
Kvery mail brings us the news of the death 
of some one who has fallen upon the battle- 
field, and its mournful lidings ctnne heavily 
to many a heart in Pennsylvania. No 
man, I say, can doubt that we are in a 
stale of war; and yet who will assert that 
that war is within the letter ol the Consti- 
tution of the United States, which declares 
that the Congress shall ''declare war?" We 
are governed by statutes which were passed, 
just as that clause of the Constitutiun was 
penned, not with a view at all to such a 
case as the present, but with a regard to 
our foreign relations; and so far as the 
statutes which are supposed to apply to 
this case are concerned, with a view to 
ofiences entirely dilierent, as I shall en- 
deavor to show you, from that with which 
this man is charged. In other words, in 
construing this statute of the United 
fcjtates, just as in construing the Constitu- 
tion of the United States, we must take 
things as we find them ; and if we discover 
that we are in circumstances which arc 
thought to jusffy the President of the 
United States and the great officers of the 
Goveruuient in asserting thut they are eor;- 
tendin^ for the life of tlie Union and must 
shut their eyes to the letter ol the Constitu- 
tion; and when the President, in substance, 
says, " I take from necessity a course 
■which is not in strict conformity to the 
■written Constitution, but 1 rely for my 
approval on the sanction of the representa- 
tives of the people, to be afterwards as- 
sembled;" and when we find these same 
great officers of Government maintaining 
that, in consequence of the ininunent peril 
to which our Government is exposed, we 
must not regard the piovisioii of the 
Constitution relative to the great writ of 
habeas corpus, that shield of individual 
right; and when we thus find the supposed 
necessities of the case excusing these de- 
partures from the spirit of the Constitu- 
tion, shall we not say, gentlemen, and will 
you not be glad to say in regard to the 
poor man now before you, that if the stat- 
ute under which he is indicted has no 
reference, aud had none in the intention 
of its makers to such a case as his, in the 
name of J ustice let him go from this Court, 
to be welcomed by his wife aud his child, j 



If there has been no law for the President, 
in his acts, but that of necessity, do not 
now reject such a palliation for the conduct 
of the unfortunate accused. 

Now, may it please your Honors, this 
man stands, as I understand it, indicted 
under :m Act of Congress passed in 1S20. 
That Act is in general words, — it says that 
any person who shall commit robbery on 
the high seas shall be punished with death. 
The iiidi';tment is under that particular 
Act of Congress. It. was so opened l^y my 
friend, the Assistant District Attorney. 
His colleague, Mr. Earle, who summed up 
this case for the Government, threw into 
the argument another Act of Conuress as 
perhaps applicable to the case. I do not 
understaiiii that it was distinctly put before 
the Court and jury, that the indictment 
was framed under the Act of 1790; but 
that previous Act of Congress, in view of 
the probable weakness of the prosecution, 
it was supposed, might possibly help the 
case. Under one or the other of these 
Acts of Congress, this man stands indicted, 
and upon your decision thereupon depends 
the question of his life or death. 1 will, 
however, take the case as it was openea to 
you by the District Attorney, and will sup- 
pose that he stands in peril of his life by 
reason of his alleged violation of the Act 
of Congress of 1B20, which, almost in the 
words I have used, punishes with death 
robbery by any person on the high seas. 
How stands the question under that law'? 

The Act of 1"<19. passed a year before, 
as your Honors well know, was temporary 
in its terms; it expired long ago. It pro- 
vided that any one who committed piracy 
"as defined by the law of nations," should 
suffer death; and the question came up in 
the case of the United States against 
Smith, 5 Wheaton, p. 153, in the first 
place, whether Congress by that Act had 
fulfilled the constitutional provision which 
gave it power "to define and punish pira- 
cies" by providing that piracy sliould be, 
not what was expressly defined by the 
statute itself, but such a crime as the law 
(if nations defined it to be. The Supreme 
Court decided that the particular Act was 
a constitutional exi-rcise by Congress of its 
power in the premises, and that the defini- 
tion of piracy by the law of nations was so 
specific that a man in the Courts of the 
United States could be indicted, tried, con- 
victed, and hanged for the otfence under 
that Act of Congress. Piracy was an 
otfence so well known to the laws of na- 
tions, that Congress could adopt it in those 
general words, and declare that whatever 
was piracy by the law of nations, should 
be piracy under the statutes of the United 
States. Questions, however, of constitu- 



n 



tional power were raised, and, no doubt, in 
view of that fact. Congress, in the following 
year, passed the present Act under which 
William Smith is indicted ; which, while it 
extends the provisions of the Act of 1819 
beyond the high seas, into bays and rivers 
emptying into the ocean, strikes out the 
general definition of piracy contained in 
the Act of 1810, and puts into the Act of 
1820, in express terms, the definition which 
was recognized by the law of nations. The 
point, therefore, that I respectfully make 
to your Honors, and to the gentlemen of 
the jury, is, that whatever was piracy under 
the laws of nations is piracy under the Act 
of 1820, under which this man stands in- 
dicted; and that whatever was not piracy 
by the law of nations, is not piracy under 
the Act of 1820. 'J'here is no alteration 
in the two x\cts, except that which I have 
indicated. The Act of 1819 was a tempo- 
rary Act ; it contained certain provisions 
which were temporary in their character; 
it had also a provision, in its fifth section, 
which was more general, which assumed to 
punish piracy as defined by the law of na- 



with him on the great pathway of nations. 
The term becomes known to the law of na- 
tions because of the place of the commission 
of the oflfence. A robber on land pursues 
his avocation within the jurisdiction of a 
particular country. He assaults you on the 
highways of Pennsylvania, or Virginia, or 
the roads of New York; he does not ex- 
tend his operations over the whole earth ; 
he is local in the commission of his crime, 
and is therefore within the jurisdiction of 
a municipal tribunal. 'I'he robber who 
goes upon the seas, goes beyond the juris- 
diction of any nation ; plunders any or all, 
upon the great highway of nations; and 
therefore his offence is against nil nations ; 
he goes where the citizens of all nations tra- 
vel, where the Englishman can be caught, 
where the Frenchman can be surprised, 
and where the Spaniard can be found, as 
well as our own countrymen ; he goes not 
into some secret place in the woods of 
Pennsylvania, and there assaults and ro'^s 
his victim. Hence, he is an enemy of the 
human race, and his offence is punished 
by the laws of all nations ; he knows no 



tions ; but as it was a question which was j law himself, and as with Cain, every man's 
gravely mooted in the country, and which hand is against him, and his hand is against 
ultimately came before the Supreme Court , every man. Such is a pirate. Whether 
of the United States for decision, whether the poor man behind me comes under this 
the definition of the crime was so precise description, you are to say by your verdict, 
as to make it just to punish persons under ] It was on this principle, therefore, that 
it. Congress, in 1820, re-affirmed the prin- i the United States of America, claiming to 
ciple of the Act, by substituting the pre- 1 be one of the great family of the civilized 
sent for the then Act of 1819. and instead \ nations of the earth, undertook to do what 
of leaving the definition as it had stood in ! all other nations had done, what the parent 
the first Act, in the general phraseology [ country especially had done — punish this 
that I have mentioned, adopted into its ' great offence against civilization ; and hence 



own terms that phiaseology which the law 
of nations had furnished as the definition 
of piracy. 

If William Smith, then, is not a pirate 
by the law of nations, he is not a pirate in 
the sense of this Act of Congress. 

Now, gentlemen, let me say one word be- 
fore I leave this head, on the general subject 
of piracy. It is a subject that we are com- 
pelled to discuss here, not the most agreea- 



it was that she passed her acts in regard 
to piracy; and that in her earliest acts on 
the subject, she said, we know no other 
law, than that which our sister govern- 
ments recognize; we know the law of na- 
tions ; we profess to follow that law, and 
to be governed by it, and whatever is a 
crime against that law, we recognise as a 
crime against our law and we punish it 
with death. It bemg a well settled 



ble, perhaps, that could be selected, but for- j principle in our government and in the ju- 
tunately we have treatises on the topic, that j diciary departii'ent of it, that there is no 
are in the hands of most general readers, criminal law of the United States that is 
certainlyof all lawyers and judges; and there ; not to be found in our acts of legitilation, 
is just as much precision in the description i (a principle that is at once recognized by 
of piracy as of any other crime known to the the counsel of the government and by the 
law. A pirate is a robber of a particular I judges on the bench,) Congress provided 
class ; he is a robber on the sea, or, by stat- [ for the definition and punishment of piracy 
utes of different countries, on the bays and [ on the statute book of the country. Now, 
rivers which empty into the sea. He is a I gentlemen, what the definition of the crime 
sea rover ; the word in its original root sig- ' of piracy by the law of nations is, my col- 
nifying roving; and the main difference be- ' league has elaborately considered. 1 shall 
tween a robber on land and one on sea, has I therefore, without truubling you with the 
respect to the place in which he commits reading of specific authorities, merely refer 
his crime. A pirate has all the bad qualities ! to some as 1 go along. The law is perfectly 
of an ordinary robber, and he carries these ' well settled, as your Honors know. 1 have 

6 



74 



given the general definition of it, adopted I be influenced by the spirit of a thief or 
by the Supreme Court of the United States | robber, which the law regards as the essen« 
in the several cases in 5th Wheaton, and ! tial element in piracy. Force or violence 
vou will find in the note to one of those is an accompaniment, but not an essential 



cases, a complete syllabus of the law on 
the subject of piracy, and citations at 
length from all the writers on the subject. 
I will give your honors a reference to the 
learned note in 5th Wheaton. 

Judge Grier. Made by Judge Story 
himself. 

Mr. Wharton. Yes, sir. On page 161 
of 5th Wheaton, at the case of the United 



element of the transaction at all. Its es- 
sential element is the robber's heart or ani- 
mus. The pirate is a man who recognizes 
no compact but that of crime. Grotius 
gives that definition of it when he says 
that pirates are connected only '^ causa 
criminis." It is the compact of robbery 
which is their only bond of association, 
'I'hey recognize and know no other. If, 



States -y. Smith, your Honors will find a j therefore, gentlemen, you meet a case where 
note extending over many pages, which • a man commits violence in the acquisition 
contains all the necessary citations upon j of another's property, but not with the in- 
the subject of piracy as defined by the law tention of appropriating it to himself, in 
of nations. the spirit of the robber, he may be guilty 

The definition extracted from those wri- I of some offence, any offence that you choose, 



ters and adopted by the Supreme Court of 
the United States, is, that piracy is forci- 
ble depredation upon the sea, animo fu- 
rancli ; and as put in another place, it ifi 
depredation on the seas without the autho- 
rity of a commission, or beyond that autho- 
rity. It is sometimes difficult, gentlemen, 
in discussing a case before men Avho are 
not lawyers, to impart the same exact idea 
which is on an advocate's mind when a 
technical term is employed ; but I shall 



but he i? not guilty of robbery on the seas, 
if the act be committed there, or on land, 
if it be committed there, 1 say, therefore, 
that the essential element in the crime of 
piracy is the spirit with which the act is 
done. If a man be a pirate, under the law 
of nations, he goes upon the ocean with 
the intention of plundering whomsoever he 
may find. He does not direct his hate 
solely against this nation or that nation, 
against this man or that man ; he goes 



endeavor in a few words to do this, because there with the intention, not of carrying 
the judges will say to you in their charge, | his prize into a civilized and Christian state, 
that, although laymen, it is your duty in a \ or into a port where it is to be subjected 
criminal case, or your privilege rather, to \ to the determination of honest and learned 
pass upon the law as well as the fact ; and j judges, but of carrying his plunder, divid- 
you cannot find a man guilty, or pronounce j ing and enjoying it, beyond the ken and 
him innocent in a prosecution under a law, not subject to the supervision of civilized 



without understanding what that law is 
You cannot conscientiously discharge your 
duty otherwise. The meaning of the term 
animo furcmdi, I respectfully submit, was 



men. That is the pirate's purpose. 

The question came up, not e.xactly as it 
here comes up, but it seems to me very 
much the same in principle, in the case 



misconceived by the District Attorney, if i cited from Wheaton by Mr. Earle, and 
he intended to give, as I supposed him to ; commented upon by my colleague. The 
do, a definition of those words in his open- [ point arose there as to the legal aspect of 
ing address to the jury. Perhaps I do him j an act of violence on the sea, con)mitted 
injustice; if so, I shall very cheerfully cor- i by a citizen of the United States, who 
rect it in a moment. After using the term, ! claimed to justify it under a commission 
he said, that the words signified the force | from one Aury, a Mexican, who styled him- 
and violence by wliich property was taken self brigadier of the Mexican republic and 



from another 

Allow me to say that the mere force or 
violence has nothing to do with the ques- 
tion ; such a definition as that would make 
every belligerent, a pirate or a rubber. 
You march down to the South at the call 



generalissimo of the Floridas ; a title 
which he used to give color to his proceed- 
ings. It was not exactly this case ; it could 
not well be so, because our country was 
then peaceful and happy : we had no di- 
vided Union; no civil war raging within 



of your country, and you meet there at the our borders. As I have said, one of the 
cannon's mouth or at the bayonet's point great features of this case, which commends 
the belligerents who are opposed to you. : it to the consideration of the jury, and to 
They take your properly or your life, or ! the careful reflection of each one of us, is, 
you take their's, with force and violence. Or i that it is perfectly novel in its character, 
should yourcountrycall you, you might pass I and you are called on to discharge the 
the northern boundary of the United States, I most embarrassing duty of applying to an 
and enter into Canada, and meet enemies ] existing state of facts, a law, in its general 
there ; but you would not, in either case, 1 language apparently meeting it, and yet 



75 



evidently not in tbe mind or intention of 
the legislature when the law was passed. 
The case alluded to had respect to what is 
now unfortunately one of the seceded States, 
Florida, then in the possession of Spain, 
and not of the country the officer of which 
claimed to exercise dominion over it, and 
to issue from it letters of marque and re- 
prisal. The question before the Supreme 
Court of the United States in that case 
involved the legal aspect of the conduct of 
the defendant, who had acted under one of 
those letters, and who thereby claimed ex- 
emption from the penalties of piracy. 
What did that court say ? There could be 
no question that, by the law of nations, 
those letters of marque and reprisal were 
void. 'I'hey were not issued by the govern- 
ment de facto of the country under which 
the defendant claimed to act. The ques- 
tion was as to his guilt or innocence; and 
what did the Supreme Court say 1 It said, 
in effect, that every case of piracy is a 
question of intention; the accused must 
have the robber's heart, or he is not guilty. 
You will observe that the question regarded 
the conduct of one who, in good faith, as 
it was alleged, had acted under a commis- 
sion which was void by the law of nations, 
admittedly so. No valid argument could 
be used against that position ; and yet the 
guilt of the party did not follow as a con- 
sequence, because, as the court thought, 
there was a question back of that : did the 
man, in good faith, act under that commis- 
sion, supposing it to be valid, and had he 
the robber's heart which would justify his 
conviction and his death? It turned out 
that the defendant had gone beyond his 
pretended authority; and his conviction 
was sustained on the ground that he had 
not kept within his authority. Jf he en- 
deavored to shield himself under a com- 
mission from a government which he sup- 
posed to be legal, he was bound to conform 
to the commission of that government, and 
having transgressed it, he was responsible 
as a pirate; just as this man would have 
l»een, if, under the commission from Mr. 
Davis, assuming to be President of the 
Southern Confederacy, he had taken on the 
high seas, and robbed an English vessel. 
Plad he done so, and been captured, he 
would have been hanged in England as a 
pirate. Such a decision there would have 
been in conformity to that of the Supreme 
Court of our own United States ; but that 
is not the question here ; the question here 
is not whether William Smith has gone be- 
yond the limits and the fair meaning of the 
commission under which his vessel sailed. 
If he had, his commission would have been 
no justification: because he does not act 
with good faith, who, professing to act 



under the terms of a warrant or commis- 
sion, goes wilfully beyond it, and seizes 
those who are not within its purview or 
spirit. But, may it please your Honors, I 
take it that the decision referred to is one 
which goes to this effect: that if a man 
acts in good faith under a commission of 
marque issued by an existing government, 
and therefore a government recognized by 
the law of nations, he is not a pirate or a 
robber on the sea, by any such code, or by 
any statute of the United States. 

Now, gentlemen, what is this man's case ? 
He was a pilot; he had been born in South 
Carolina, had gone at an early age, when 
three, or four, or five years old, to the State 
of Georgia; he had been educated there; 
he had served a long apprenticeship at the 
occupation of a pilot ; it was an apprentice, 
ship which involved years of study, and much 
rough experience. It was an occupation, 
which, before he could follow it, involved 
on his part the possesion of sobriety, in- 
dustry, and honesty. He qualified himself 
for that occupation and he was making it 
the means of livelihood. He had married, 
and had a child to support, and a wife to 
nourish and take care of. He was follow- 
ing the peaceful pursuits of commerce, and 
was contributing not only to the wealth of 
his adopted State, but was giving his ser- 
vices to the people of other States and of 
other countries, as the commerce of Georgia 
was carried on chiefly in Northern or 
foreign bottoms. He is not Mr. Jefferson 
Davis, or Mr. Robert Toombs, not General 
this, nor Commodore that, but a poor 
Savannah pilot, who was faithfully laboring 
in his avocation, glad to pilot any vessel 
that came within his reach ; not anxious to 
do anything out of his profession ; earning 
the good will of all his neighbors ; when 
he suddenly finds, without any fault or 
agency of his — being not a member of any 
Congress, confederate or otherwise, not a 
man of war, — he discovers his whole country 
blockaded ; no vessels coming in or out of 
the familiar waters of his State ; with no 
means of earning bread for his wife and 
child; a mariner by occupation ; he knows 
more of the sea than of the land ; his na- 
tive and his adopted State are both involved 
in war; they place their heavy hand upon 
him, telling him in substance, "come Wil- 
liam Smith, you are quite able to fight our 
battles on the ocean ; those Northern men 
are coming to drive us from our homes and 
take our property from us; stand by your 
State and country ; if you do not, we will 
drive you out, with your wife and child, 
and you may go North and starve there." 
What could this man do ? He did, 1 think, 
what most men would have done. Few 
honorable men, whatever their notions of 



76 



political matters, would have fled from | 
their homes. Smith went from Savannah i 
to Charleston. There was a vessel, — 1 will j 
show you in a moment what her character ! 
was. It is necessary that I should turn 
3'our attention to some of the documents in 
this case. You have already, I hope, got 
the notion of piracy well in your minds ; 
when you understand the official documents 
that regulated the conduct of this man, 
you M'ill be able to say whether he went on 
board of the Jeff. Davis with the felon's or 
robber's heart ; for that is the question you 
are to pass upon. His State called upon 
him, under a requisition to which he was 
compelled to submit ; and he enrolled him- 
self, how? In a pirate ship? In a priva- 
teer, carefully fitted out by the government 
of the Confederate States, in a vessel which 
was subject to military discipline ; which 
Lad its commander and its lieutenants, its 
surgeons and its pursers. Aye, from the 
time he went on board that vessel, he was 
subject to the commands of the officers and 
could not leave it without their permission. 
Jn other words, he went into the ranks of 
war — war on the ocean, but none the less 
war — went, with no intention of robbing 
any one, but .simply to perform his duty as 
a sailor in the service of the existing gov- 
ernment at the South. 

Now gentlemen, let me, as I pass along, 
recall rapidly your attention to the leading- 
facts in this case as they are shown by the 
evidence. A great revolution, or rebellion, 
or insurrection had occurred in our South- 
ern country. The President thought it right 
to use the military force of that part of the 
Union which stood by him, to put down the 
organized opposition ; and M orthern men 
stepped forward in answer to his summons. 
'J he people at the South determined to re- 
sist. 'I'hey thought the course of the 
Executive unconstitutional, and that it 
was their duty to resist war by war, or 
rather force by force. It is not for me to 
pass any opinion on their conduct ; I am 
not doing so ; I am simply presenting in its 
truth, as 1 understand it, the case of this 
man who is before you in peril of his life. 
'J'wo days after the President, by his pro 
clamatiou of the 1,5th of April last, had 
called out seventy-five thousand men of the 
bone and sinew of the country to re-possess 
the property of which the United States 
had been dispossessed, and to compel sub- 
mission to her laws, an already organized 
government at the South, with Mr. Jeffer- 
son Davis at its head, issued a proclamation 
which was the basis of the action of this 
particular defendant; for on the 17th of 
April, referring in terms to the proclama- 
tion of President Lincoln of the 1.5th, Mr. 
Davis, by another proclamation, invited the 



co-operation of privateersmen, in order to 
resist what he was pleased to call, the ag- 
gressions of the North, and to assist in 
driving away war from Southern borders. 
Here was therefore a great community, an 
immense body of people, exercising all the 
functions of government, calling upon the 
residents of that country to render their 
assistance in the war which was upon them. 
Tt was not, we respectfully contend, for 
William Smith to question the rightfulness 
of the contest. He was bound to render 
service. " Render unto Caesar the things 
that^are Caesar's." If there was any autho- 
rity unrighteous, in the "land of Jud.a," 
where that language was used, it was Cae- 
sar's ; and if ever there was an authority 
that rightfully required submission to its 
dictates, it was the authority of the person 
who uttered that command. \\'i!liara 
Smith rendered the service which was de- 
manded of him. Soon after the 17th of 
April, the Congress of the Confederate 
States, as they style themselves, passed an 
act, to which I will ask your attention for 
a moment, in order that you may see 
whether what Smith did, was done under 
any notion on his part that when be en- 
tered on board the Jeff. Davis, he did it 
with the intention of committing piracy 
against the people of the United States. 
The Southern Congress, by an act which 
was published on the 6th 5lay, 1861, after 
the proclamation of Mr. Davis, reciting 
that " the earnest efforts made by this 
government to establish friendly relations 
between the government of the United 
States and the Confederate States, and to 
settle all questions of disagreement between 
the two governments upon principles of 
right, justice, equity and good faith, have 
proved unavailing," * * * proceeds to de- 
clare that " ^Vhercas, the President of the 
United States of America has issued his 
proclamation, making requisition upon the 
States of the American Union for seventy- 
five thousand men, for the purpose as 
therein indicated, of capturing forts, and 
other strongholds, &c.," and then to enact 
that "the President of the Confederate 
States is hereby authorized to use the 
whole land and naval force of the Con- 
federate States to meet the war thus com- 
menced, and to issue to private armed 
I vessels, commissions or letters of marque 
i and general reprisal, in such form as he 
shall think proper, under the seal of the 
Confederate States, against the vessels, 
goods, and effects of the government of the 
j United States, and of the citizens or inhabi- 
' tants of the States and Territories thereof 
except the States and Territories herein- 
before named." 
; 'J'hose States and Territories were th'i 



77 



States of Maryland, North Carolina, Ken- 
tucky, Tennessee, Arkansas and Missouri ; 
and the Indian Territory, Arizona and 
New Mexico. 

^'Provided, however, That property of 
the enemy (unless it be contraband of war) 
laden on board a neutral vessel shall not 
be subject to seizure under this Act. And 
provided further. That vessels of the citi- 
zens or inhabitants of the United States 
now in the ports of the Confederate States, 
except such as have been since the 5th of 
April, or may hereafter be in the service 
of the Government of the United States, 
shall be allowed thirty days after the pub- 
lication of this act, to leave said ports and 
reach their destination." 
It provides further, 

"That all persons applying for letters of 
marque and reprisal, pursuant to this act, 
shall state in writini!; the name, and a suit- 
able description of the tonnage and force 
of the vessel, and the name and place of 
residence of each owner concerned therein, 
and the intended number of the crew ; 
which statement shall be signed by the 
person or persons making such application, 
and filed with the Secretary of State, or 
shall be delivered to any other officer or 
person who shall be employed to deliver 
out such commissions, to be by him trans- 
mitted to the Secretary of State. * * * * 

" That before any commission or letters 
of marque and reprisal shall be issued as 
aforesaid, the owner or owners of the ship 
or vessel for which the same shall be re- 
quested, and the commander thereof for 
the time being, shall give bond to the Con- 
federate States, with at least two responsible 
sureties not interested in such vessel, in 
the penal sum of §5,000 ; or if such vessel 
be provided with more than one hundred 
and fifty men, then in the penal sum of 
$10,000; with condition that the owners, 
officers, and crew, who shall be employed 
on board such commissioned vessel, shall 
and will observe the laws of the Confederate 
States and the instructions which shall be 
given them according to law, for the regu- 
lation of their conduct ; and will satisfy all 
damages and injuries which shall be done 
or committed contrary to the tenor thereof, 
by such vessel, during her commission, and 
to deliver up the same when revoked by 

the President of the Confederate States. 
***** 

" That all captures and prizes of vessels 
and property shall be forfeited, and shall 
accrue to the owners, officers, and crews of 
the vessels by whom such captures and 
prizes shall be made ; and, on due condem- 
nation had, shall be distributed according 
to any written agreement which shall be 
made between them : And if there be no 



such written agreement, then" in a certain 
proportion. 

" That all vessels, goods, and effects, the 
property of any citizen of the Confederate 
States, or of persons resident within and 
under the protection of the Confederate 
States, or of persons permanently within 
the territories, and under the protection of 
any foreign prince. Government, or State 
in amity with the Confederate States, 
which shall have been captured by the 
United States, and which shall be recap- 
tured by vessels commissioned as aforesaid, 
shall be restored to the lawful owners, upon 
payment by them of a just and reasonable 
salvas^e," &c. * * * * 

"That the President of the Confederate 
States is hereby authorized to establish 
and order suitable instructions for the bet- 
ter government and directing the conduct 
of the vessels so commissioned, their offi- 
cers and crews, copies of which shall be de- 
livered, by the collector ot the customs, to 
the commanders, when they shall give bond 
as before provided." 

Under that law, instructions were issued 
to the privateers, and to those instructions 
I will ask your attention, in a moment. My 
object in these citations is merely to show 
you, that there was in the case of this man 
serving on board the Jeff. Davis, a totally 
different intention and in regard to him a 
totally different state of things, from that 
which exists in the ordinary case of pirates 
or sea-robbers. The instructions were these : 

" The tenor of your commission, undei' 
the act," (which 1 have read.) "a copy of 
which is hereto annexed, will be kept con- 
stantly in your view." 

The instructions then proceed to define 
the •' high seas," and further state : 

" You are to pay the strictest regard to 
the rights of neutral Powers and the usages 
of civilized wa^ious, and in all your pro- 
ceedings towards neutral vessels, you are 
to give them as little molestation or inter- 
ruption as will consist with the right of 
ascertaining their neutral character, and 
of detaining and bringing them in for regu- 
lar adjudication in the proper cases." 

***** * * 

" The master, and one or more of the 
principal persons belonging to the captured 
vessels, are to be sent, as soon after the 
capture as may be, to the Judge or Judges 
of the proper Court in the Confederate 
States, to be examined upon oath touch- 
ing the interest or property of the captured 
vessel and her lading, and at the same 
time are to be delivered to the Judge or 
Judges all papers, charter parties, bills of 
lading, letters, and other documents and 
writings found on board ; and the said 
papers to be proved by the affidavit of the 



78 



commander of the captured vessel, or some 
other person present at the capture, to be 
produced as they were received, without 
fraud, subtraction, or embezzlement. 

" Property, even of the enemy, is exempt 
from seizure on neutral vessels, unless it be 
contraband of war. 

* * * ^ * * * 

" Towards enemy vessels and their 
creivs you are to proceed in exercising the 
rights of war, with all the justice and hu- 
manity ivhich characterize this Govern- 
ment and its citizens." 

Such were the instructions under which 
this man was marshaled into the service 
of the Confederate States ; and they were 
carried out in the proceedings of the Jeff. 
Davis privateer, so far as we have them in 
evidence, and arguing from what appears 
to other things of a like nature, you will 
suppose that those instructions were fol- 
lowed throughout her cruise. You will 
recollect the testimony which speaks of tlie 
manner in which their captives on the high 
seas were treated. You had some of them 
here on the stand ; you cannot but have 
admired the candor of those witnesses for 
the Government, and their manly bearing 
After capture " how were you treated ?' 
" Were you put in heavy irons ?" " Were 
your legs locked together by a chain about 
twelve inches long?" " W^ere your arms 
pinioned and ironed, and were you stuffed 
together in the narrow hold of the ves- 
sel ?" Oh, no ; " we were treated just 
like everybody else ;" " we slept in the 
cabin ;" '• we got the best food." Two or 
three of them said, "it happened to be our 
own food." I suppose you could not have 
done them a greater favor, in this respect, 
than in providing them with their own care- 
fully selected provisions. If that food was 
not good, it was not the fault of the priva- 
teers. They slept in the cabin, where the 
officers of this privateer slept, and came on 
deck, when it suited theui better. In the 
hot nights of July, it did suit them better 
to lie under the canopy of the fresh air ol 
the ocean. They were treated with every 
consideration; and when their condition 
became a little uncomfortable, because ol 
the crowd of prisoners, this privateer, 
having t>ecured a good large ship, placed 
them politely on board, and actually sent 
them to one of the Northern ports of the 
United States, and thus furnished testi- 
mony against William Smith, on trial for 
his life. 

Now, I would desire to be informed ol 
" the usages of any civilized nation" that 
are more conformable to justice and hu- 
manity, than this privateer seems to have 
exhibited in the course of her cruise. J 
have never had the luck of the company ol 



robbers and pirates; but T have read about 
them, and I never yet have heard of one 
such who treated his prisoners as these 
people seem to have treated their's. 

I shall leave the argument of compulsion, 
generally, where my colleague placed it, 
without desiring to weaken it in any way 
by not dwelling on it. ]t seemed to me to 
be a powerful one. If there was not physi- 
cal compulsion, there was that sort of 
moral compulsion which compels to a cer- 
tain line of conduct, and which justified the 
defendant so far as to free him fruni the 
imputation of being a sea-robber. How it 
may affect his character otherwise, I do 
not think it necessary to inquire, and I do 
not suppose the jury do ; but 1 say that 
under the invitation addressed to the citi- 
zens of the Southern States, this man took 
his position on board that vessel, and com- 
ported himself in accordance with the 
j instructions he received. Now, I agree, 
that, if, in overhauling the Enchantress, or 
the Mary Goodell, or the John Welsh, or 
any of the other vessels that were met on the 
high seas, these men had violated their in- 
structions, and had acted towards their cap- 
tives as was done to them by those in com- 
mand of the Albatross, they would have been 
guilty of piracy. I am content to admit it. 
1 think they would, because their instruc- 
tions were, while they carried on war 
against the (jovernmeut of the United 
Slates and her citizens, to conduct them- 
selves according to the usages of civilized 
nations, and to observe the laws of justice 
and humanity; and they did so. Had 
they gone beyond their warrant, the deci- 
sions of the Courts would have ranked 
them with pirates, and they must have 
taken the penalty. 

Now, gentlemen, it becomes proper for 
me to say something in addition even to 
what my colleague has said on this subject 
of privateering. From the opening of the 
Assistant District Attorney and his col- 
league who summed up the case for the 
Covernniout, a person who knew nothing 
about the subject would leave this court 
house with the impression that a privateer 
was worthy of any invective you might 
choose to hurl at him, and that the Govern- 
ment which tolerated privateering was nut 
worthy to be ranked in the sisterhood of 
civilized nations ; and my learned friend, 
Mr. Earle, whose private opinions are 
supposed to be well known on this subject 
— 1 believe he is a peace man — quoted two 
or three authors, who advocate "(lO in 
for peace" always and everywhere. There 
are eminent statesmen who contend tnat 
you must not go to war on any occasion or 
for any cause, as it is always wrong. If 
you think so, I cannot help it. Gentle- 



79 



men, it is not my opinion. I do not think 
that war is one of the absolute crimes. 
It may be Mr. Earle's opinion ; perhaps 
not ; but he quoted writers who have said 
so. That is not the state of the law, nor 
of public opinion, in this country, gentle- 
hien. Privateering is nothing but one 
mode of going to war; and to capture a 
vessel on the high seas and treat her crew 
with tenderness and humanity, to give 
them good food and comfortable living, 
and send them to their own homes again 
in peace and quietness, is not quite as bad, 
certainly not worse than takins- a gun and 
ehooting a man, as happens under the ordi- 
nary operations of war. Privateering, 1 
Bay, is but one mode of carrying on war; 
and it has been sanctioned by almost every 
government on earth, and has been especi- 
ally sanctioned by our own Government; 
and not only by our own national Govern- 
ment, but by the States of this Union long 
before tliey were united under the present 
Constitution. My learned colleague has 
presented some portion of the history of 
privateering; I will add one or two facts 
only, and, as he has referred to the State 
of Massachusetts, 1 will also allude to her. 
Massachusetts has taken the lead, gentle- 
men, in several operations in this couutry. 
It is narrated — I do not pretend to say so 
myself — but it is narrated in books that she 
and some other of the Eastern Common- 
wealths took a prominent part in the slave 
trade; and it is also said that she took the 
lead, as my colleague has attempted to 
show by citations, in secession, or nullifica- 
tion, or whatever you may call it. She has 
led off in many public affairs, some very 
good, and son)e otherwise ; but she ap- 
pears certainly to have been foremost in 
privateering. If you will allow me to 
quote from a book, written, I think, by 
a Massachusetts man, though published in 
New York, Hildreth's History of the 
United States, you vvil find that before the 
Declaration of Independence, and of course 
long before the formation of the present 
Constitution, as early, indeed, as tlie 10th 
cf November, 1775, the State of Massachu- 
setts passed a law to authorize the fitting 
out of privateers and to establish a court 
for the trial and condemnation of prizes. 
If any one feels an interest in the citation, 
he will find it at the 101st page of the 3d 
vol. of Hildreth's History of the United 
States. That law, preceded, by fifteen 
days, the action of the old Continental 
Congress upon the same subject; for it 
was on the 25th of November, 1775, that 
the Congress passed a law authorizing pri- 
vateering. Massachusetts was two weeks 
ahead of Congress, and she passed a law 
to institute and encourage privateering. 



The history of this country has taught 
us that Massachusetts did not stand alone 
in this act; her lead was followed by other 
States ; her lead was followed by our own 
Commonwealth. The Continental Con- 
gress encouraged the practice. One of the 
greatest men that has ever adorned the 
naval history of this country earned his 
fame partly as a privateer, partly as an offi- 
cer in the Continental navy ; and the naval 
history of this country is brilliant with his 
achievements. We know very well the tes- 
timonials which have been offerod to him. 
I happen to hold in my hand the life of 
John Paul Jones. You will find that it is 
preceded by laudatory notices from James 
Madison, Thomas Jefferson, and Joseph 
Story. It is Sherborn's life of that cheva- 
lier, as he was styled, and his virtues and 
his glory are there commemorated largely. 

The best argument, however, in a court 
of law, perhaps, is, that our national statute 
book contains existing laws in regard to 
privateering, which sanction it. There 
were acts in 1812 that have since expired : 
the existing laws on the subject date from 
the year 1813, during the war with Great 
Britain ; and any man, therefore, who rises 
in a Court of the United States, and at- 
tempts to brand another with disgrace or 
crime, by reason of his having been a pri- 
vateersman, casts an imputation not only 
on the naval history of his country, but on 
her statute laws. I say this, without fear 
of contradiction ; and so far, therefore, 
from you having an impression injurious to 
this defendant from the fact that he accep- 
ted office under a privateer's commission, 
you ought rather to say, (independently 
of the other questions of the case, but look- 
ing simply at that of privateersman or not,) 
that he did good service to his country. 

Now, gentlemen, let us look at this mat- 
ter a little more closely. I have detained 
you somewhat with expositions upon the 
subject of the law of piracy, and the history 
and character of privateering. Just ask 
yourselves a plain, practical question : what 
is the difference in principle between fight- 
ing us on the ocean and fighting us on the 
land ? Why is it that this man, who went 
upon the ocean to fight the battles of his 
existing government, should be brought be- 
fore you as a jury, and branded as a felon 
and a pirate? Why is it that he should 
be selected, and the officers of rank and 
station who have been taken by our army 
at the South, should be treated, practically, 
as honorable prisoners of war, and many of 
them discharged on their parole of honor? 
Why is it that the vengeance of this great 
government should settle on the head of 
William Smith, as a felon, a pirate, a sea_ 
robber, who is to be consigned to a felon' 



80 



death on a gallows, and those men of rank 
and character who upon the land fight us, 
not a whit more bravely, or honorably, or 
humanely, than this man would have fought 
us, should be discharged on their parole of 
honor, the simple word of a gentleman ? 
Why is it that they shall return to their 
homes and enjoy their firesides, upon their 
promise not to bear arms again against the 
United States of America, as discharged 
prisoners of war? And this poor man is 
to be dragged into this court, and after 
your verdict, be hanged on a gallows ? Is 
not he as much a belligerent as they? Is 
he not in reason entitled to be treated as a 
prisoner of war as much as they? "Why 
do they not send home, on his parole of 
honor, William Smith, to a suffering wife 
and child ? Why send home, or retain as 
mere prisoners of war, this commodore or 
that captain, and keep William Smith here 
in irons, as he was until he came beneath 
the panoply of this court, when those irons 
indeed fell from him, and they were restored, 
to whom? To the commander of a vessel 
of the United t^tates, as the property of 
the United States The Marshal could not 
keep the fetters ; they belonged to the na- 
tional ship; and William Smith comes into 
court with the marks upon him of those 
irons, -which had worn .into his very flesh, 
through weeks of torment. This is to be 
the conduct observed towards him ! Why, 
gentlemen, it makes the blood boil, when 
we think of these differences and distinc- 
tions. If we are in a civil war, let us war 
like Christian men, and fight our opponents 
like brave and honorable men; for I tell 
you that mercy and kindness are ever con- 
stituent elements of truth, bravery, and 
honor. 

Such is the practical question for you. I 
say if we are to initiate the system that 
has been suggested to us by the govern- 
ment in this case, we must erect a line of 
gallows that shall extend from Philadelphia 
to the banks of the Potomac ; but, let me 
add, that for every man hanged here, there 
will be tin executed at the South ; there 
will be an opposition line of gallows reach- 
ing from Richmond northwards; they have 
many more prisoners than we hold ; and I 
predict, if William Smith shall be executed 
on account of the ofl'ence with which he is 
indicted, that there will go up to Heaven a 
wail from Castle Pinckney that will be 
heard even on the banks ot the Delaware. 
Theie will be reprisals and retaliations, 
and that state of things which a learned 
and humane writer, on the law of nations 
has so earnestly deprecated. There is no 
greater authority on the subject than 
Yattel,the Frenchman who wrote the book 
which 1 now hold. The 18th chapter of 



the 3d book of his great work is devoted to 
the subject of civil war. I commend it to 
the perusal of each one of you. He dis- 
cusses the question not only of subjects re- 
belling against a monarchy ; but of a revo- 
lution, insurrection or rebellion in a Repub- 
lic : and he lays it down as part of the 
acknowledged law of nations, that when a 
civil war takes place in a country, that law 
requires that the combatants on either side 
shall conduct themselves according to the 
established, well settled rules of Christian, 
civilized warfare. He says, it has been the 
usage or the talk of persons in power, to 
treat all that resist their authority as 
rebels. 

Gentlemen, in reading this work, and in 
looking over some of the prominent news- 
papers of the present day, one would sup- 
pose, that the latter had copied their senti- 
ments from the parties to whom Yattel re- 
fers. He says in substance, that it has 
been the fashion of every existing Govern- 
ment to say when a rebellion, or insurrec- 
tion occurs. " you are all rebels, or traitors ; 
we will hang you or shoot you." Such is 
the not uncommon language of this day in 
reference to our own opponents. But what 
does Vattel say in answer ? Such is not the 
sense of civilized Europe ; it is not the 
code of laws which regulates the intercourse 
of nations. What is the necessary conse- 
quence of the opposite doctrine ? Who can 
tell which, in the ordering of Divine Pro- 
vidence, may be the stronger party ? The 
stronger party in the end will visit reprisals 
with vengeance indeed, on the heads of 
those who inaugurated such a system ; and 
if the majority begin by shooting and 
hanging the minority, and ultimately the 
minority should become the majority, there 
will be few of the conquered whose heads 
will not be cut off, or whose necks will not 
be broken ; for it is not in man's nature to 
resist such an inducement to vengeance. I 
tell you, gentlemen, that you are now asked 
to initiate in this happy and free land of 
ours as it was a short time back, a system 
at which the subjects of the monarchies of 
Europe would turn pale. Tiiey have not 
the hardihood to proclaim such a doctrine 
as this. 

Their writers say with one voice, as your 
rebellious citizens are able to frame a gov- 
ernment of their own, and claim, whether 
right or wrong, to stand on the same 
platform with yourselves ; as they have 
organized a government, and administer 
its laws, according to their notions of justice 
and propriety ; as they have the capacity 
to raise and t-quip fleets and armies, and to 
meet you on your own soil in battle ; it is 
not important in the view of the law of na- 
tions to consider whether they or you are 



81 



right r you must be jgroverned by a universal 
law; a higher law if you choose so to call it ; 
thelawof luimanity and of justice ; they will 
tell you that, if you initiate any other sys- 
tem, the day of peace, of Christianity, and 
of comfort has gone far from your land, and 
your fields will be filled with the dead 
bodies of your people, and your rivers will 
flow with torrents of their blood. 

Is this an indictment under the law of na- 
tions ? If so, that law is too clear to sustain 
it. I ask my learned friend who is to fol- 
low me, to point out anyone writer on that 
code who says that one who goes forth in 
good faith, on the ocean, under a commis- 
sion in a privateer vessel, to make war on 
the enemies of his existing government, is 
held or treated as a robber or a pirate. I 
beli-ve that no such authority can be 
found. You recollect, that when such an 
attempt was made in the Supreme Court of 
the United States, in a case much less sus- 
tainable than the present, the learned 
Judges of that Court were careful to ab- 
stain from any such opinion. 

In order to convince you, that I have not 
misinterpreted the views of Vattel, 1 will 
cite a few passages from the chapter of his 
treatise, to which 1 have especially alluded. 
They are as follows: 

"It is a question very much debated 
whether a sovereign is to observe the com- 
mon laws of war towards rebellious subjects 
who have openly taken up arms against him ? 
A flatterer, or a cruel ruler immediately 
says, that the laws are not made for rebels, for 
whom no punishment can be too severe. 
Let us proceed more mildly, and reason 
from the iucontestible principles above laid 
down. * * -» * 

" Popular commotion is a concourse of 
people tumultuously assembled, who resist 
the voice of their superiors, whether their 
design be against those superiors themsel- 
ves, or only some private persons. * * * 
When the evil spreads, infecting great num- 
bers in the city or provinces, and subsists 
in such a manner that the sovereign is no 
longer obeyed, such a disorder, custom has 
more particularly distinguished by the 
name of insurrection. * * * 

" When a party is formed in a state, 
which no longer obeys the sovereign, and 
is of strength sufficient to make head 
against him ; or when in a republic the na- 
tion is divided into two opposite factions, 
and both sides take arms ; this is called a 
civil war. Some confine this term only to 
a just insurrection of subjects against an 
unjust sovereign, to distinguish this lawful 
resistance from rebellion, which is an open 
and unjust resistance ; but what appella- 
tion will they give to a war in a republic 
torn by two factious, or in a monarchy be- 



tween two competitors for a crown ? Use 
appropriates the term of civil war to every 
war between the members of one and the 
same political society. If it be between 
part of the citizens on one side, and the 
sovereign with those who continue in obed- 
ience to him on the other ; it is sufficient 
that the malcontents have some reasons 
for taking arms, to give this disturbance 
the name of civil tear, and not that of re- 
bellion. This last term is applied only to 
such an insurrection against lawful author- 
ity, as is void of all appearance of justice. 
The sovereign indeed never fails to term 
rebels all subjects openly resisting him ; 
but when these become of strength suffi- 
cient to oppose him, so that he find himself 
compelled to make war regularly on them, 
he nmstbe contented with the term of civil 
war. ****** 

"Things being thus situated, it is very 
evident that the common laws of war, those 
maxims of humanity, moderation, and pro- 
bity, which we have before enumerated and 
recommended, are in civil wars to be ob- 
served on both sides. The same reasons 
on which the obligation between state and 
state is founded, render them even more 
necessary in the unhappy circumstauce 
when two incensed parties are destroying 
their common country. Should the sove- 
reign conceive he has a right to hang up 
his prisoners as rebels, the opposite party 
will make reprisals ; if he does not religi- 
ously observe the capitulations, and all the 
conventions made with his enemies, they 
will no longer rely on his word ; should he 
burn and destroy, they will follow his ex- 
ample ; the war will become cruel and hor- 
rid ; its calamities will increase on the 
nation. The Duke de Montpensier's in- 
famous and barbarous excesses against the 
reformed in 1: ranee are too well known : 
the men were delivered up to the execu- 
tioner, and the women to the brutality of 
the soldiers. What was the consequence ? 
The reformed became exasperated — they 
took vengeance of such inhuman practices ; 
and the war, before sufficiently cruel as a 
civil and religious war, became more bloody 
and destructive. ***** Even 
troops have often refused to serve in a war 
wherein the prince exposed them to cruel 
reprisals. Officers who had the iiighest 
sense of honor, though ready to shed their 
blood in the field of battle for his service, 
have not thought it any part of their duty 
to run the hazard of an ignominious death. 
Therefore, whenever a numerous party 
thinks it has a right to resist the sovereign, 
and finds itself able to declare that opinion 
sword in hand, the war is to be earned on 
between them in the same manner as be- 
tween two difi'erent nations; and they are 



82 



to leave open tlie same means for pi-event- 
ilig enormous violences and restorinj^ peace. 

" When subjects take up arms without 
ceasing to acknowledge the sovereign, and 
only to procure a redress of grievances, 
there are two reasons for observing the 
common laws of war towards them. First, 
lest a civil war becoming more cruel and 
destructive by the reprisals, which, as we 
liave observed, the insurgents will oppose 
to the prince's severities. 2. 'I'he danger 
of committing great injustice by the hast- | 
ily punishing those who are accounted re- 
bels : the tumult of discord, and tlie flame 
of a civil war, little agree with the proceed- 
ings of pure and sacred justice : more quiet 
times are to be waited for. It will be wise 
in the prince to secure his prisoners till, 
having restored tranquility, he is in a con- 
dition of having them tried according to 
the laws." 

Gentlemen, I have little more to say to 
you about this case. It is, as I have befnre 
said, one not only of gravity but of diffi- 
culty. I know it to be difficult, in a court 
of the United States, to argue against the 
language of a statute of the United States. 
I know it will be pressed upon you that 
the plain words of the law are these : 
"Any person who commits robbery on the 
high seas, shall be punished vvith death." 
I know you will be told that William Smith 
is a pirate ; that he did an act which con- 
tains the essential elements of lobbery; 
that is, he took property on the sea by 
force. I am not disposed to cavil about 
small matters. There is no question that 
the Enchantress yielded herself to a supe- 
rior force ; there is no question that that 
pivot gun, and those waist guns, and those 
armed men, and the cutlasses, and the pis- 
tols, and the muskets, all induced her cap- 
ture. There is no doubt at all that she 
was taken with force and violence, and that 
her men were confined, and that she would 
have been treated, if carried to port, as a 
prize of war. There is no question that 
they literally ran away with the captured 
vessel ; and that they ])ut a pnxe crew on 
board. It was necessary by the laws of 
nations to do this ; their instructions re- 
quired it. This placing; on board a prize 
crew, which has been dwell upon, was one 
of the Very items of instruction under 
whicii they acted. They were to take the 
Knchautress where? 'Jo the isles of the 
South, or into solitary haunts of robbers 
&nd pirates, not showing themselves in the 
face of civilized men? Were they to do 
this? Not at all. 'i'liis prize crew was 
put on board, and they were directed to go 
to Savannah, to Charleston, or to New 
Orleans, ports of our own country, Tliey 
Avejo to hand her over to a court of justice 



there ; to surrender the papers ; to libel 
this vessel for condemnation ; they were to 
do in their Courts what is done every day 
in this Court when our vessels brirt^ in a 
prize. With us, a commissioner is ap- 
pointed by the Court, who takes the testi» 
mony. The same formalities would have 
been gone through in her case ; the distri- 
bution would have been made under the 
decree of a Court; and AYilliam Smith 
would have received only what the laws of 
his existing government would h ive ac- 
corded to him. If their Honors shall say 
that they must, as Judges of the United 
States, shut their eyes to the fact that we 
are in a civil war — that you, gentlemen, 
must shut your eyes to the fact that there 
is a great government at war with ns— that 
in the South there is an existing govern- 
ment which administers its own laws in its 
own way, and that the laws of the United 
States are not administered there — that 
there is an army and a navy contending 
with us ; and that you can know none but 
citizens of the United States, and no gov- 
ernment but the government of the United 
States — that every man south of the Poto- 
mac who is caught on the land in arms 
against us, or on the sea under their pri- 
vateer commissions, is to be treated as a 
citizen of the United States engaged in 
robbing his fellow-citizens — if you are to 
take only that narrow view of the law, and 
close your eyes to this great chapter in the 
history of nations, so like to what is every- 
where to be read on its pages, and if. I say, 
a Court of the United States is to declare, 
as a consequence of all this, that William 
Smith must be hanged by the neck, let it 
be so ; God have mercy on him ! 

But I trust, gentlemen of the jury, that 
the honorable Judges on the bench will 
tell you that although they sit to adniinistev 
the law of the United States, they do not 
shut their eyes to the reason and spirit of 
the law, and that they will say it liad no 
application to a case such as this ; that it 
has reference to robbers who act without 
pretence of commission or authority from a 
State, and that therefore the case of Wil- 
liam Sniith is entirely out of the written 
statutes of the United States. 1 1 it should 
please Congress to pass a law touching the 
subject-matter, it must do so in reference 
to future transactions alone. 

1 knew that in a Court of law, unless I 
can present an argument which commends 
itself to the judicial mind, all other sugges- 
tions are of little account ; and 1 have no 
desire to induce these gentlemen wlio are 
before me, to give a verdict against the 
reality of the law. I have a right, how. 
ever, in a criminal case, to persuade their 
judgments, that the law is as I have argued 



83 



it to be, they being influenced, of course, 
by the opinion of the Court. Bearing then 
upon this question and feeling its interest 
and importance, I draw your Honors' at- 
tention, and that of the jury, to the fact 
that the government of the United States 
has made a distinction between ordinary 
piracy, and piracy under the color of a com- 
mission from another government. There 
is a statute which draws that distinction. 
I do not intend to go now into a discussion 
of that statute. I had supposed that the 
government might frame its indictment 
under it ; but it has not ; and I simply refer 
therefore to the ninth section of the Act 
of April 30th, 1790, for the purpose of 
showing that that law of the United States 
is framed on the presumption of a necessity 
to distinguish between the case of acting 
under a commission, and of not so acting ; 
and that where a party proceeds under a 
commission from a foieign power, he is 
not because of that, a pirate at all ; to ren- 
der him such, he must be a citizen of the 
United States, acting under the authority 
of a foreign government, and by virtue of 
that, joining in the war upon other citizens 
of the United States ; for, as the Supreme 
Court of the United States has said in 
United States v. Wiltberger, .5 Wheaton, 
99-lUO, the whole purpose of that Act was 
to prevent citizens of the United States 
from accepting privateers' connnissions from 
foreign governments and then making war 
upon their fellow citizens in breach of their 
allegiance. So I'ar, however, from condem- 
ing privateering, that law impliedly recog- 
nizes it ; though upon that subject we have 
as I have said, what are more satisfactory 
than a mere implication, existing laws of 
the United States. 

Gentlemen, I have done with my sugges- 
tions and my argument. I need not say to 
you in conclusion, that this man's fate is 
with you. ]f this be a new case, as 1 sup- 
pose it to be ; if it be a doubtful one, as 1 
suppose it to be ; in Hod s name, give this 
man the benefit of that doubt. Where men 
like Mr. Calhoun and Mr. Webster have 
differed ; and where men like the latter have 
differed with themselves at different periods 
of their own lives ; where learned jurists 
have differed, and where that difference 
still exists, inducing all our troubles, dis- 
tracting many a man's mind, and puzzling 
many a good man's conscience, it is very 
hard indeed, gentlemen, that one like Wil- 
liam Smith should pay for his error of 
judgment with the forfeit of his life. It is 
a fearful thing to think of. I know that 
justice must be done though the heavens 
fall ; and that individual hardship is never 
an argument against the application of law ; 
but 1 say that it is a great cousolatiou to 



counsel when they come into Court to de- 
fend a prisoner at the bar of a criminal 
court, to know, that whatever may have 
been his conduct, and whatever the penalty 
for that conduct, his client can go out of 
Court and perhaps out of the world, with 
the conviction of the purity of his motives ; 
that if he has erred against government in 
such way as to call for so heavy a forfeit, 
he made at least an honest mistake ; and if 
he is to hang, it will be in obedience to the 
better judgment of persons who are more 
learned and nioi'e intelligent than himself, 
but not a whit more honest at heart. 

Mr. Keli.ey — With submission to your 
Honors — Gentlemen of the Jury, — More fully 
than any man in this crowded court room, can 
I appreciate the sincerity of the expression of 
diifiiJence with which each of the gentlemen 
who have precedeil me, has commenced his 
remarks. The case is, as has been said to 
you, a grave cue, and in our courts a novel 
one. It may, therefore, well impress each one, 
acting as counsel either on behalf of the de- 
leudant or the government, with a sense of 
his own insufficiency. But, to me, this is 
peculiarly so : for I am here as the repr<Jseuta- 
tive of a friend upon whom providence has 
laid its hand sorely, — one who while yet in 
the enjoyment of health had given to this case 
the care and attention it deserved from a man 
full of energy, devoted to the honor of his 
profession and the duties of his office, possess- 
ing an intellect at once subtle and grasping, 
highly cultivated in the schools and thoroughly 
disciplined by the conflicts and labors of a suc- 
cessful professional career. As the friend of 
the District Attorney, George A. CoSey, Esq., 
I appear to represent tlie government and to 
utter the concluding words of counsel in the 
case; and I could well wish that the position 
had fallen to another. But the duty is upon 
me, and I will perform it to the best of my 
ability. 

I propose first, gentlemen, to ask you to go 
hastily with me over the leading points in the 
testimony, — not to repeat tlie language of the 
witnesses, but to give you the evidence in sub- 
stance. On the first day of last July, there 
sailed from ihe port of Boston, the schooner 
Enchantress, an American vessel having 
American papers and the American Aug, 
chartered by an American merchant, and 
carrying as cargo the property of American 
citizens. The cargo was to be exchanged at 
8t Jiigo de Cuba, and she was to bring by a 
circuitous voyage, to its owners the just 
results of their enterprise. Tlie story of 
her voyage until the sixth of the month, is 
brief iind unirnpurtant. Observing a sail 
in sight on the after noon of that day, her 
officers sh.iped iier course so that she came 
near to the vessel. There floated at the 
mast-head of the stranger, the flag of 
France, a nation at peace with their own. 
They came near her, feeling that thex-e 



84 



•were friendly hearts on board. When they 
had come within the proper distance for such 
a purpose, they were hailed and found them- 
selves under the range of the guns of an 
armed brig, from the deck of whicli they were 
ordered to heave to; and as they passed 
around her bow to a position of safety for 
compliance with that order, a long eigh teen- 
pounder, a pivot gun, kept them in range. Thus 
under constraint of overwhelming force, the 
schooner hove to. William Smith, the defend- 
ant, was on board of the vessel that thus 
brought her under the power of its guns and 
thus constrained her to surrender her voy- 
age and lay to. The Enchantress was soon 
boarded ; her papers demanded and surrend- 
ered ; her crew sent on board the stranger 
vessel, the captain, his son a lad, and the 
mate, alone left in possession. In a little 
while, the boat that had borne the crew away, 
returned, bringing back one of the number, a 
native of the Danish West ludies, who had 
left the port of Boston under the protection 
of the American flag. Why did he return ? 
The boat came to carry away the ofBcers 
and the boy that had been left behind. Why 
did it bring Jacob Garrick back? He was 
sent back because he was not wanted on board 
the pirate brig, and because he would, as mer- 
chandise, bring $1,500 in the port of Charles- 
ton ! So the witness Page, has told you. He 
left the deck of the Enchantress a man, and 
before the clock had struck returned to it a 
mercliantable thing for a market. The cap- 
tain, mate, and boy were now ordered to the 
boat; they obeyed the order; then where 
went our Enchantress with her American 
papers, American flag, and American mer- 
chandise ? Where went the ventures of your 
fellow-citizens ? They were now destined for 
a market nearer than St Jago de Cuba, to be 
reduced to dollars and cents, that William 
Smith, the defendant, might receive his ap- 
pointed portion of them, — the price of the 
schooner, merchandise, man, and all! 

These are, briefly, but I think clearly told, 
the essential facts of the voyage, so long as 
the Enchantress remained in charge or in any 
possible or constructive possession of her offi- 
cers. Was robbery perpetrated then and 
there? I ask this question now, because the 
question before you is, was this defendant 
guilty of piracy under the laws of the United 
Stales ; and if there was a taking of property 
under these circumstances, fur which no legal 
justification has been shown, there was rob- 
bery ; and he was guilty of the crime charged. 
The sole question for you to decide, 1 repeat, 
is, has this defendant been guilty of jnracy 
under the laws of the United States, — not 
under the common law, — not is he the gene- 
ral enemy of the human kind, — not has he 
the highwayman's heart and habits; — but 
are you as a jury, satisfied that he has vio- 
lated the laws of the United States for the 
prevention and punishment of piracy. In 
connection with the facts referred to, you 
have also learned that the vessel which 



1 brought the Enchantress to and took off her 
crew, was heavily armed ; that her cabin was 
' stacked around with bayonetted muskets, 
j double barrelled fowling pieces, boarding 
pikes, and pistols ; and that there were a hun- 
dred men on board of her. Nine, says one of 
I the witnesses, had been sent on b^ ard of my 
I vessel that morning, and when the Enchantress 
! was taken there were, I think, seventy-three 
left. We heard also of crews having gone 
on board of other vessels from this brig now 
i known to us as the Jeff. Danis. 
^ The law of the United States to which you 
are to apply the facts of the case, has been read 
I to yon, but I will take the liberty of reading 
it again. Its terms are simple and express. 
! My learned friend who with so much power 
closed for the defendant (Mr. Wharton), ad- 
i mitted that the case seemed to be within the 
letter of the law, and his argument to you 
was that it was not within its spirit if you 
I would kindly ascertain that spirit by the aid 
of certain facts which appeared to have great 
weight upon his mind. The letter of the law 
and its interpretation, as you will receive it 
from their Honors upon the bench will, I ap- 
1 prehend, guide you, and I will therefore best 
j perform my duty by calling your attention to 
j its letter. It is : 

[ '• If any person shall, upon the high seas, 
or in any open roadstead, or in any haven, 
basin, or bay, or in any river where the sea 
t ebbs and flows, commit the crime of robbery 
in or upon any ship or vessel, or upon any 
of the ship's company of any ship or vessel, 
or the lading thereof, such person shall be 
adjudged to be a pirate." 

Now, gentlemen of the jury, what are the 
\ defences set up to this charge? The facts as 
I they stand seem in my judgment, to make out 
j as clear a case of piracy as ever was made 
out. To it, what are the defences ? First, 
! you are told that this man was not voluntarily 
there, that he was there under duress, — re- 
straint. It is argued, and you are persuaded 
I to infer, that he would gladly have escaped if 
' he could, for if that is not true his duress or 
I restraint was not such as the law recognises. 
How did he come to be there? If you may be- 
' lieve his own witness, Edward Rochford, one of 
I his companions in crime, who is, like himself 
' under indictment, the day before the body of 
'■ the crew left the port of Savannah, he was 
I seen upon the steps of a hotel, valise in hand, 
I apparently at liberty. He traveled by railroad 
; to the city of Charleston, and there he went 
on the Jeff' Davis, and after some days she 
went to sea with him on board. If the argu- 
ment, and the facts from which it is attempted 
to be deduced, establish duress in his case, 
they apply to every man on board that vessel, 
and we are left to wonder why it is that the 
Jeff. Davis did not immediately come north, 
and the defendant and his worthy comrades 
find freedom from such outrageous restraint ! 
With a hundred men, she sailed to sea on the 
26th of June. What vessel she captured or 
what course she pursued on that day, or the 



85 



next, or the next, we know not ; we begin to 
learn these matters only on the afternoon of 
the 6th of July, and we then discover what 
she had done in the morning of that day as 
well as what she did in the afternoon. I say 
the argument that tlie defendant was on board 
the Jeff. Davis under restraint, applies to 
every man on board, for the idea upon which 
it rests is that there was some law or sup- 
posed law that compelled him to go. He was 
there, however; and to get there he had 
traveled by rail, valise in hand, from Savan- 
nah; he had remained on board for weelis 
and there is no allegation that he had at- 
tempted to escape; but it appears that he did 
leave the Jeff. Davis on the Gth of July, and 
went as prize master on board the Enchant- 
ress. Here he had a prize crew of four and 
one prisoner, Jacob Garr.ck the colored man. 
AVhich way did he steer that vessel? Did he 
now, when he was the master of his position, 
attempt to escape the service to which he had 
been constrained and to which he was so unwil- 
lingly held ? Oh, no. When he took charge of 
the £nch an tress, she was two hundred and fifty 
miles south-east of Nantucket South Shoal, 
and when she was re-capt>ired by the Alba- 
tross, she was in the neighborhood of Hat- 
teras. But again: Where liad he talked of 
taking her ? Where had he thought of taking 
her? Where did he wish to take her? The 
witness tells you, he spoke first of going to Sa- 
vannah, and then he changed his mind and pro- 
posed to take her to a place called Bulls, 
about twenty-five miles from Charleston, and 
whence she could be towed to that city by a 
steamer. Had some evidence of original duress 
been exhibited, what would it weigh against 
this absence of effort to escape, this persistent 
and vigorous performance of a pirate's duty ? 
The law defines this matter of the measure of 
duress, which will relieve a man from the con- 
sequences of his criminal act — no recent law; 
it is not a new question. In Foster's Crown 
Case, chap. 2, sec. 8, p. 216, of the London 
edition of 17'J2, the law is given thus : 

" The joining with rebels in an act of rebel- 
lion or with enemies in acts of hostility, will 
make a man a traitor; in the one case within 
the clause of levying war, in the other within 
that of adhering to the king's enemies. But, 
if this be done for fear of death, and while the 
party is under actual force, and he taketh the 
first opportunity that olFereth to make his 
escape ; this fear and compulsion will excuse 
him. It is however incumbent on the party 
who maketh fear and compulsion his defence, 
to show, to the satisfaction of the court and 
jury, that the compulsion continued during 
all the time he staid with the rebels or ene- 
mies." 

Let me illustrate this law by a case — 
McGrowther's case, which was tried in 
1746. 

"In the case of Alexander McGrowther, 
there was full evidence touching his having 
been in the rebellion, and his acting as a 
lieutenant in a regiment of the rebel army, 



called the Duke of Perth's regiment. The de- 
fence he relied on was, that he was forced 
in. And to that purpose he called several 
witnesses, who in general swore that on the 
28th of August, the person called the Duke of 
Ferth and the Lord Strathallan, with about 
twenty Highlanders, came to the town where 
the prisoner lived; that on the same day three 
several summonses were sent out by the Duke 
requiring his tenants to meet him and to con- 
duct him over a moor in the neighborhood 
called Luiny Moor; that upon the third sum- 
mons the prisoner, who is a tenant to the duke, 
with about twelve of the tenants appeared; 
that then the Duke proposed to them that they 
should take arms and follow him into the re- 
bellion ; that the prisoner and the rest refused 
to go ; whereupon they were told that they 
should be forced, and cords were brought by 
the Duke's party in order to bind them ; and 
that then the prisoner and ten more went off, 
surrounded by the Duke's party. 

" These witnesses swore that the Duke of 
Perth threatened to burn the houses, and to 
drive off the cattle of such of the tenants as 
should refuse to follow him. 

" They all spoke very extravagantly of the 
power lords in Scotland exercise over their 
tenants ; and of the obedience, (even to the 
joining in rebellion,) which they expect from 
them." 

Somewhat analogous it may be supposed 
to the power exercised over the people of the 
south by themselves, or the masters they have 
set upon their backs, who liking their seats 
make them show their paces. But to the 
case. In summing up, the Lord Chief Justice 
said in response to these arguments : 

" The fear of having houses burnt or goods 
spoiled, supposing that to have been the case 
of the prisoner, is no excuse in the eye of the 
law for j(jining and marching with rebels, 

"The only force that doth excuse is a force 
upon the person, and present fear of death ; 
and this force and fear must continue all the 
time the party remains with the rebels. It 
is incumbent on every man who makes force 
his defence, to show an actual force, and that 
he quitted the service as soon as he could, 
agreeably to the rule laid down in Oldcastle's 
case, that they joined pro timore mortis, and 
recesseruntquaiii cito potuerunt.^' Foster's Crown 
Cases, pp. 13, 14, 

Under this law, and it is indisputable, what 
becomes of the argument of duress ? The 
defendant could have returned the Enchant- 
ress and her cargo to their owners, and re- 
ceived the " God speed" of his country, and 
the proud and tender expressions of love and 
gratitude of his " Northern wife, and boy at a 
Northern college," lor his act of honesty and 
patriotism. It was then open to William 
Smith, the prize master, to pursue the course 
of the humble man, Jaco Garrick, who saw 
before him worse than death, and when the Al- 
batross approached, threw himself into the 
ocean, that at the cost of his life, if need be, 
the Enchantress should be restored to her 



86 



country, the property on board to its owners, 
and lie escape the outrages and unrequited 
toil, that $1,500 Cto be divided among the 
pirate crew, J were to entail upon him, and 
his posteiify. But where is the evidence of 
Smith's desire to escape, his honesty, patriot- 
ism, or any redeeming element of character — 
the love even of wife and child, whom he 
could have visited so gratefully with his 
protection, in this season of turbulence, 
distraction, doubt, and danger? What one 
generous or honest impulse seems at any 
time to have possessed or impelled him ? 
No, gentlemen of the jury, the suggestion 
of duress will not avail : indeed it is not the 
defence in this case — it is but dust for jurors 
eyes. The defence upon which counsel rely 
is that their client acted under a commission, 
a letter of marque, and I proceed to inquire 
whether they have established this fact. 

A letter of marque is a commission granted 
by an established government to the com- 
mander of a merchant ship or privateer, to 
cruise against and make prizes of the enemy's 
ships and vessels, either at sea or in tlieir 
harbors, under pretence of making reprisals 
for injuries received ; and let me, at the outset 
of this inquiry, premise that you have not 
heard that sort or measure of evidence, which, 
despite all t'le difficulties that surround the 
defendant's case, ought to have been produced 
to show that there was a letter of marque, 
real or pretended, on board the Jeff Davis. 
There is, I aver, no evidence that there was a 
genuine letter of marque from any government 
or pretended government on board that robber 
craft. The prosecution freely admits that the 
presumption, deducible from notorious facts, is 
that there was in the possession of one of her 
officers, a paper purporting to be such a letter ; 
but so far as this case is concerned, the offer 
of evidence in support of the allegation was 
to the last, degree slender and feeble. One ot 
the defendant's confederates in crime was 
called to show, that while on board, he heard 
what purported to be such a paper, read. He \ 
seemed to have a pretty distinct recollection 
of the fact, much more definite indeed than he 
had as to facts nearer to him, as for instance 
as to what share of the plunder he was to get ! 
He had heard that subject '-a little talked 
about," ''somewhat discussed," but he did 
not know precisely what share he was to get I 
He had been led to believe, however, that it 
was to be divided among them. 

The spectacle now presented is one of the 
most extraordinary, and 1 think one of the 
most sublime ever beheld by man. We are 
in a court of justice of the United States, try- 
ing a cause quietly, courteously, and with a 
tender regard for the rights of tie defend- 
ant, at a lime when I'lUU.UUO of our brothers 
auu friends are armed and on the tented 
field, — and when, as has been said to you 
every mail brings the tidings of the death 
of some loved or honored one. We are 
trying a mau who comes from a section 



of our own country, in wMch, to profess 
a love for the United States, its govern- 
ment and its flag, not only suspends the 
the habeas corpus in the particular case, but 
seems to suspend all law, human or divine, 
curdles and paralyzes all generous emotions 
and manly instincts, and inflicts even upon 
gentle woman, such brutal punishments, as 
only barbarous nations apply to hardened 
malefactors; sparing their lives, it may be, 
but sending them to their homes with shavea 
heads, excoriated backs and limbs, and other 
enduring badges of degradation and shame. 
And what defence is set up, and how is it 
received ? It is that this defendant was aid- 
ing the cause of those who are arrayed in arms 
against our brethren ; that he was aiding the 
cause of those who thus punish our people lor 
loyalty to their government ; that he ^waa 
aiding the cause of those who have stricken 
down and dishonored the flag of our country, 
and made war upon its institutions and its 
people. And that defence is pressed and 
listened to, and weighed, and strengthened 
even by presumptions. It is right that it should 
be so. Such scenes as this, will redeem our 
generation in history. They prove that it is 
not our democratic republican institutions, 
that have begotten a tendency to barbarism 
among a people once civilized, generous, and 
humane ; that the love of law and order, justice, 
truth, and right, still dwells in the hearts of 
the American people, and are the sure pledge 
of the ultimate realization of the best hopes of 
those who have most faith in man's capacity 
for self-government. 

Men have a right to change their form of 
government, says the learned counsel (Mr. 
Harrison,) and the remark discloses the car- 
dinal point of the defence. Yes, men have a 
right to change their government. That ar- 
gument is not novel ; it has been made before, 
under somewhat similar circumstances, and I 
thank his Honor, Judge Cadwalader, for hav- 
ing in an opinion cited this morning by my 
learned adversaries, called my attention, to 
the reply it has elicited. 

Savs Lord Chief Justice Eyre, in Hardy's 
case : 

" It was observed to you by the leading 
counsel on tlie part of the prisoner (to whom 
L am always desirous of paying attention), 
and the observation was repeated, that a peo- 
ple had a right to alter their government. 
That proposition, under certain circumstances 
may he true; but it ought not to have been 
introduced into a court of justice, bound to 
administer the law of the existing government 
and to suffer no innovation upon it. i did 
not interrupt the learned counsel when he 
stated this proposition, because I did not wish 
to stop him, or to disconcert the chain of his 
argument; hut having passed it by upon that 
occasion, 1 feel it my duty to notice it now, 
betause it can have no relation to the busi- 
ness beiore us, because it tends to unsettle 
men's minds, to bring on a thirst for iuuova- 



87 



tions, and to shake all the foundations of 
government." 24 Sla'.e Trials, 1371 ; Trial 
of Thomas Hardy. 

We, gentlemen of the jury, have not changed 
our government. We live under the Consti- 
tution and laws of the United States. We are 
here to maintain that Constitution, and to en- 
force those laws. We have not joined what 
my learned brother Wharton says is now re- 
cognized not only as a rebellion but as a great 
rebellion ; and it ill becomes a member of our 
Bar, sworn to support our Constitution and 



several States are, it is true, independent 
of one another. They are also independent of 
the government of the United States, except 
for such purposes as the Constitution speci- 
fies. But, for all the specitie purposes for 
which it was adopted, the States are, with 
reference to the United States, dependent 
and subordinate, and not loreign States, 
In the Constitution, the word 'foreign,' oc- 
curring in five clauses of the original instru- 
ment, and once in the amendments, is always 
used in such a sense as to exclude its appli- 



our laws, to put in the defence that some peo- i cability to a State of the Union, or to any 
pie think they have changed our government, thing appertaining to one. The States, there- 
Nobody denies the right of revolution ; but it ' fore, though for some purposes foreign to 
does not exist every day. and extend to all i one another, are, for all national purposes 
people under all circumstances. The eloquent embraced in the Constitution, united under 
gentleman, (Mr. Harrison,) quoted Mr. Web- , a government which is both independent and 
Bter on this point. Let us see if Mr. Webster i supreme." (6 Cranch, 1S6 ; 6 Wheat, on 
puts tno limitations to the right. He said: i 381 ; 2 Peters. 590; 12 Peters, 720; 21 How- 
" If the gentleman had intended no more \ ard, 517.) Decision in case of ship General 
than to assert the right of revolution for Parkhill, p. 7. 
justifiable cause, he would have said only I Vou perceive that his Honor recognizes the 



what all agree to ; but I cannot conceive 
that thete can be a middle course between 
submission to the laws when regularly pro- 
nounced constitutional, on the one hand. 



Constitution of the United States as what its 
letter declares it to be, the supreme law of 
the land, by which the Judges in every State 
are bound, anything in the constitution orlaws 



and open resistance, which is revolution or of any State to the contrary notwithstanding, 
rebellion, on the other." I The doctrine of State sovereignty is 

Even here, in the learned counsel's chosen broached in this case, and the right of a 
passage, justifiable cause is said to be State to secede is argued, and, with equivocal 
a pre -requisite to the right of revolution, qualification, asserted by all the counsel. 
I have shown you that it has ever been held i Whence is it drawn? What sentence or para- 
that it is not a proper defence to offer in the graph of the Constitution implies it? Look 
court of the existing government, the laws of i through that instrument, take it line by line, 
which are being administered. When then ' section by section, article by article, and say 
can it be set up? Has the time come with where the most astute of southern or north- 
us? Has there been a revolution that has j ern statesmen find the text or principle upon 
overthrown our government ? Is there a j which the doctrine of State sovereignty, and 
government peaceably established on its ] the right to secede, is based ? Every section 
ruins in any part of its territory that has ■ refutes the doctrine. Take, for instance, a 
issued a letter of marque to these people? part of the 1st Article: 
These questions you must decide in passing j " Congress shall have power, 
upon the defence set up. And in deciding 1 *' To lay and collect taxes, duties, imposts 
them, gentlemen of the jury, you will decide I and excise, to pay the debts and provide for 
so far as in you lies, whether the U. S. Con- the common defence and general welfare of 
stitution is still extant; whether the Ameri- 1 the United States; but all duties, imposts, 
can people still have a government. For if i and excises, shall be uniform throughout the 



the letter of marque in question (conceding 
that there was one,) is a sufficient justifi- 
cation of the crime charged, the United States 
government is at an end, and that which we 
have so confidently believed to be enduring. 



United States. 

" To borrow money on the credit of the 
United States. 

" To regulate commerce with foreign na- 
tions, and among the several States, and 



perpetual, a thing to bless mankind while , with the Indian tribes, 
time should flow, has passed away and is at j " To establish an uniform rule of natu- 
an end. If this be true, our Republican in- ' ralization, and uniform laws on the subject 
stitutions have been a delusion, as fleeting as ! of bankruptcies, throughout the United States, 
it was resp'eudent with promise. Let us see " To coin money, regulate the value there- 
whether I am right in this. Turn with me of, and of foreign coin; and to fix the stand- 
to a recent opinion of his Honor, Judge Cad- i ard of weights and measures, 
■waliader, quoted by my learned brother. " To provide for the punishment of coun- 
Let Die quote a brief passage, the argument | terfeiting the securities and current coin of 
of which you will perceive is sustained by j the United States. 

numerous citations from the highest au- " To establish post offices and post roads, 
thority known to American courts : "To promote the progress of science and 

" The States which compose the Constitu- j useful arts, by securing, for limited times, to 
tional Union, are not, with reference to it ; authors and inventors, the exclusive right to 
either foreign or independent States. The their respective writings and discoveries. 



88 



" To constitute tribunals inferior to the 
Supreme Court. 

♦' To define and punish piracies and felo- 
nies committed on the high seas, and offences 
against the law of nations. 

" To declare war, grant letters of marque 
and reprisal, and make rules concerning cap- 
tures on land and water. 

" To raise and support armies; but no ap- 
propriation of money to that use shall be 
for a longer term than two years. 

" To provide and maintain a navy. 

*' To make rules for the government and 
regulation of the land and naval forces. 

" To provide for calling forth the militia 
to execute the laws of the Union, suppress 
insurrections, and repel invasions." 

So it proceeds, through a series of clauses, 
to limit the power and sovereignty of the sev- 
eral States, by giving to the general govern- 
ment all those powers which are essential to 
every well-regulated nation. But lest all this 
might not be sufficient to establishment be- 
yond argument the subordination of the States, 
there was, as if to provide for this case, era- 
bodied in the 10th section of the same article, 
this paragraph : 

" No State shall enter into any treaty, al- 
liance, or confederation ; grant letters of 
marque and reprisal; coin money ; emit bills 
of credit; make anything but gold and silver 
coin a tender in payment of debts; pass any 
bill of attainder, ex post fado law, or law im- 
pairing the obligation of contracts, or grant 
any title of nobility." 

But. gentlemen, take the Constitution with 
you; look at it line by line, and section by 
section ; and though on every page you will 
find the evidence that it was to be the supreme 
law of the land, you will nowhere find the 
point upon which ingeniiity can hang the ar- 
gument that each State was sovereign, and 
the United States government subordinate ; 
that it was a temporary compact or treaty 
of peace between neighboring sovereigns, 
which could be broken whenever any of the 
parties to it became impatient of its restraint. 
It was a government ordained by a people and 
invested with power to enter into treaties with 
the governments of other nations, and to 
maintain itself against the assaults of foreign 
or domestic foes. 

My learned brother, the senior counsel for 
the defendant, (Mr. Wharton), said well that 
the present circumstances could not have 
been anticipated by the men who framed our 
government. No, for while the Constitution 
provides for the suppression of rebellion, and 
its own peaceable amendment, it purports to 
be a bond of perpetual union. The founders 
of the government could not have foreseen 
the present stnte of affairs. Gifted as they 
appear to have been with prescience, they could 
not have imagined that an American citi- 
zen taken in the act of piracy as defined by a 
law of Congress, should come into court and 
through learned counsel sworn to maintain 
ihat Constitution which ordains that Congress 



shall have power to grant letters of marque, 
and provides that no State shall grant letters 
of marque, ask an acquittal because the act 
was perpetrated under such a letter granted 
hy a State or a combination of States. 

The Constitution is still, thank God, the su- 
preme law of our land under which we are to 
try the cause, and its very letter, with wise 
forecast, proclaims the inefficiency, the illegal- 
ity, the utter worthlessness of the alleged 
commission by which the defendant's crime is 
attempted to be justified. 

The effrontery of this defence is amazing. 
It is, as my colleague said, like the apology 
for a blow inflicted on the king which con- 
sisted of an earnest assurance that it was in- 
tended for the queen. 

The defendant substantially says, " I did not 
commit piracy, because I was engaged in a 
higher crime; I did not commit piracy, because 
I did not try to steal the property of Englishmen 
or Frenchmen, or Spaniards; 1 only stole that 
of American citizens; and I did not do that 
entirely for my own advantage, but in part 
that by harassing and impoverishing my loyal 
countrymen, I might help forward the great 
conspiracy to destroy the Constitution which 
their Honors have sworn to support, and 
which you, gentlemen of the jury, are bound 
by your oaths to maintain." 

He did not commit piracy, because he did 
not want to injure Englishmen, or Frenchmen, 
or Spaniards! Did the learned gentleman, (Mr. 
Wharton), put that argument to you seriously? 
Did the eloquent gentleman who talked so glibly 
of the right of secession and of State Sove- 
reignty, and of the defendant's paramount al- 
legiance to the State of Georgia ( Mr. Harrison) 
mean to say, that the defendant and his con- 
federates in this cruel and wicked rebellion, 
intended no harm to the people of foreign na- 
tions ? It is not true. Free, republican Ame- 
rica, is the promised land of oppressed millions 
toward which they journey when hope gilds 
their dreams. The Constitution of the United 
States is the pillar of tire by night, and the 
cloud by day, to weary, oppressed, and long- 
ing multitudes ; it is the miracle of modern 
times ; it stands and will stand, in all history, 
so far above and beyond any other state 
paper or document, that it is without peer or 
parallel, or thing comparative ; it is the out- 
growth of ages, the pledge of future peace and 
prosperity to the world, and it was well 
characterized years ago by our venerable and 
distinguished townsman, Hon. George M. 
Dallas, as the fit canopy for a continentj 
Not want to injure the Englishman, the 
Frenchman, or the Spaniard! Go to the 
homes of the poor and ojipressed in the British 
realm, the wide empire of France, or the 
kingdom of herCatholic .Majesty, and jou will 
find the young patriot heart beating at the 
mention of this far-off land of ours. You will 
find that America is the land toward which 
the heart of the young man leaps, and for 
which the pining old man sighs — not for the 
fertility or beauty of our land, not for the 



89 



grandeur of our lakes and rivers, but for the 
prosperity, the growing progress and freedom 
of a multitudinous people made up from the 
oppressed of all lands and enjoying the bless- 
ings of equal laws. 

The defendant did not commit piracy, say 
Lis counsel, because he was engaged in the 
work of armed rebellion; he is not a felon, 
because he was only trying to tear to pieces 
the Constitution of our country ! He was 
only trying to involve in a state of perpetual 
war, thirty-four great States ; he was only 
trying to m?ike a line of custom houses, and 
a system of passports, and a standing army 
necessary to mark the boundaries of every 
little principality or great state, kingdom or 
empire, that mad ambition may carve out of 
what is now the territory of the United States 
of America I He was only trying to obliterate 
tl e glorious memories and forever dispel the 
blessed hopes of the American people I Per- 
mit me to say here, gentlemen of the jury, 
that the deteiice is not competent, or in my 
judgment one tlmt ought to have been set up 
in this court. You have been told that the 
doctrine of secession is a received legal doc- 
trine, and Mr. Rawle's and other speculative 
and metjiphysical essays have been referred 
to in its support ; but 1 ask my learned 
brothers to point to a single decision in any 
American Court in which that doctrine has 
been held. I throw open to them the law 
library, the decisions of the entire country, 
and ask them to bring to your notice one 
single decision that can guide them or you to 
that conclusion. 

Mr, Harrison. My argument was that 
there had been no decibion on the suVject 
either way. 

Mr. Kelley. The cases cited by his Honor 
Judge Cadwalader, in the brief quotation I 
have made from his opinion in the Parkliill 
case, abundantly answer that suggestion 
But let us look for a moment at Mr. llawle's 
book. I do not know its history. This may 
be much to my shame ; but I have not found it 
among the generally recognized expositions of 
the Constitution. It was written by a very 
distinguished lawyer, but I apprehend from 
the hasty glance I have been able to cast over 
its pages, when he was a young man, and 
rather for his own gratification as a general 
essay upon the Constitution, than under the 
impression that he was preparing a legal ar- 
gument, or authoritative exposition; but even 
he shrinks from the conclusion to which, by 
some extraordinary process, he seems to have 
come. 

'•Separation," (said he, in the paragraph 
following the passage read by my learned 
brother,) *' would produce jealousies and dis- 
cord, which in time would ripen into mutual 
hostilities, and while our country would he 
weakened by internal war, foreign enemies 
would be encouraged to invade with the flat- 
tering prospect of subduing in detail those 
whom collectively they would dread to en- 
counter." 



And again: — "If in other countries, and par- 
ticularly in Europe, a systematic subversion 
of the political rights of man shall gradually 
overpower all rational freedom and endanger 
all political happiness, the failure of our ex- 
ample should not be held up as a discourage- 
ment to the legitimate opposition of the suf- 
ferers. If, on the other hand, an emancipated 
people should seek a model on which to frame 
their own structure, our Constitution, as per- 
manent in its duration as it is sound and 
splendid in its principles, should remain to be 
their guide." Kawlt ok the Constitution, pp. 

299, aoo. 

Seeing how Mr. Rawle recoiled from his 
own conclusion, let us turn to the Commen- 
taries of that distinguished jurist, Judge 
Story, upon the Constitution. After allud- 
ing to the fact that some of the people of 
Masf^achusetts, Virginia, and other States had 
conceived "queer notions,"' as the eloquent 
gentleman, Mr. Harrison, said the other day, 
he says : 

" What, then, is to become of the Consti- 
tution, if its powers are thus perpetually to 
be the subject of debate and controversy ? 
What exposition is to be allowed to be of au- 
thority ? Is the exposition of one State to 
be of authority there, and the reverse to be of 
authority in a neighboring State entertaining 
an opposite exposition? Then, there would 
be at no time in the United States the same 
Constitution in operation over the whole 
people. Is a power, which is doubted or de- 
nied by a single State, to be suspended, either 
wholly or in that State? Then, the Consti- 
tution is practicilly gone as a uniform sys- 
tem, or indeed as any system at all, at the 
pleasure of any State. If the power to nul- 
lify the Constitution exists in a sing'e S'a'e, 
it may rightfully exercise it at its pleasure. 
Would not this be a far more dangerous and 
misth evous power, than a power granted by 
all the States to the judiciary to construe 
the Constitution? Would not a tribunal, ap- 
pointed under the authority of all, be more 
safe than twenty-four tribunals, acting at 
their own pleasure, and upon no common 
priuiiples and co-operation? Suppose Con- 
gress should declare war; shall one State 
have power to suspend it? Supfose C n- 
gress should make peace; shall one State 
have power to involve the whole country in 
war ? Suppose the Pres-ident and Senate 
should make a treaty ; shall one State declaie 
it a nullity, or subject the whole country to 
reprisals lor refus.ng to obey it ? Yet, if 
every State may for itself judge of its obli- 
gations under theConstitution, it may disobty 
a particular law or treaty, because it may 
detm it an unconstitutional e^erciseof power, 
although every other State shall concur in a 
contrary opinion. Suppose Congress should 
lay a tax upon imports burthensome to a par- 
ticular State, or for purposes which such 
State deems unconstitutional, and yet all the 
other States are in its favor; is the law lay- 
ing the tax to become a nullity ? That would 



T 



90 



be to allow one State to ■withJraw a power 
from the Union which was given by the peo- 
ple of all the States. That would be to 
make the general government the servant of 
twenty-four masters, of different wills and 
ditierent purposes, and yet bound to obey 
them all." Story on the Constitution, vol. 1, 
pai;e 353. 

Such was the view of Judge Story. It is 
authoritative, and is so received wherever 
the Constitution is studied. It would hare 
been the slave of twenty-four masters at 
the time he wrote, but of tliirty four to- 
day, and if the people of the United States 
maintain and defend it, a day will come 
when he who quotes that passage may 
insert a hundred for the twenty-four. Y'our 
country, and mine, gentlemen of the jury, is 
alike on the plains of Texas and in the harbor 
of (Charleston, among the enduring rocks that 
resist tlie surging billows of the Atlantic, and 
on the golden sands that hem in the still wa- 
ters of tlie Pacific. The Constitution of tlie 
United States, the right to establish which 
was won by the valor and endurance of our 
fathers, and the wisdom to indite which seems 
to have been providentially given, makes 
each State of the Union the country of each 
one of us, and secures to our posterity the 
right of citizenship in every future American 
State ; and when the Mississippi valley, 
drained as it is by more than fifty thousand 
miles of water course, shall feed and clothe, 
and house and educate a hundred millions of 
Iree people of a single generation, there will 
be one United S'ates Court into which the 
people of a hundred States will come to liti- 
gate and settle their diSerences peaceably. 
The Constitution is the great guarantee of 
future peace. To maintain it, in its integrity, 
is to secure the countless millions who shall 
succeed us in the enjoyment of our rich heri- 
tage against such wicked outbreaks as the 
military and naval power of the country are 
DOW suppressing. But if we now fail in loy- 
alty, or falter in duty, tlie angel of peace 
may bid the world farewell, till some modern 
Alexander or Ctesar, acC' pted hy an enfeehied 
and despairing p^'ople, sighing for peace on 
any terms, inay estahlish a despotism wide- 
spread as the limits of our republic. 

" iMr. President," (said Danie! Webster,) 
"if the friends of nullification should be able 
to propagate their opinions and give them 
jiractical effect, they would, in my judgment, 
prove themselves the mo.-t skiitul 'architects 
of ruin,' the most effectual extinguishers of 
high-raised expectation, the greatest blasters 
of human hopes, that any age has produced 
'J'hey wiiuld bland up to proclaim, in tones 
which would pierce the ears of half the hu- 
man race, that the last great experiment ot 
lepresentative government had failed. They 
would send furth sounds, at the hearing of 
which the doctrine of the divine right ot 
kings, would feel, even in its grave, a return- 
ing sensation of vitality and resuscitation. 
Millions of eyes, of those who now feed their 



inherent love of liberty on the success of the 
American example, would turn away from 
beholding our dismemberment, and find no 
place on earth whereon to rest their gratified 
sight. Amidst the incantations and orgies of 
nullification, secession, disunion, and revohi- 
tion, would be celebrated the funeral rites '^f 
constitutional and republican liberty." Wtb- 
ffr's Works, vol. 3, p. .503, 504. 

How prophetic were these words. The mere 
attempt to carry the baneful doctrines into 
effect, has suspendeil the arts of peace 
throughout our country, summoned more tiian 
half a million of freemen to the bloody field 
of civil war, filled the hearts of the penple 
with grief and anxiety, and shrouded tlieir 
houses in gloom. Nor, mighty and terrible 
as those results are, do they indicate the full 
mea.'-ure of fearful consequences which flow 
irresistibly from the mere attempt to reduce 
to practice the insane dogma npon which the 
counsel hare rested the defence of the pris- 
oner. The world is not too wide a field 
to illustrate the effects of so great a crime. 
Where are the liberalists of England in the 
political contests of the day? "The Thun- 
derer" proclaims the end of the great He- 
public, ami the friends of freedom in that 
land shrink from pressing forward the hu- 
mane movement which has engaged their 
hearts and hopes for years Again, the 
Thunderer proclaims to all Europe that the 
experiment of democratic republicanism is at 
an end, and Kossuth and his brave Hungari- 
ans accept the fact, and consult as to who 
shall be king of Hungary. And again, says 
the Thunderer, the great experiment is at an 
end ; the civil war in America has ex- 
tinguished the fjiith of the world in a de- 
mocracy, and Garibaldi sinks into quietude and 
gives up the hope of an Italian republic ! 

I might here, gentlemen of the jury, rest 
the case, with the single remark that it is no 
defence to the crime charged in the indict- 
ment and proven by the witnesses, to say 
that the act was perpetrated in furtherance 
of this grandest of all historic crimes. But 
respect for the able gentlemen who have 
managed the defence, requires me to notice 
some of the minor points they have pressed 
upon your attention, which I will now proceed 
to do, as briefly and with as much method 
as 1 may, in view of the fact that the contin- 
uing progress of the discussion has pre- 
cluded the possibility of an examination of 
my notes. 

Why, you are asked, convict the defendant, 
when hundreds of thousands are armed and 
in the field against you? 

The answer is, because it has been proven 
that he was guilty of one of the most henious 
of indictable offences. Did he, when he 
shipped as a seaman for that voyage, believe 
that the engagement was for honorable war- 
fare and involved no peculiar risk ? Let his 
confederates answer. 

Did you hear, we asked, anything said 
about Smith, after he left the brig? Yes, 



91 



said Richford, the men were talking about 
how he felt, ami what risk he was running, 
and so on. Yes, he and every man on 
board that vessel knew he was running a 
risk ; the risk of his neck; hence it was that 
tliey wondered how he felt when absent from 
her armamenf^ind desperate crew 

Privateering, it is said, has been recognized 
by all civilized nations, and I admit it, but the 



meeting soldier, and taking the risk of the 
contest with no golden vision of prize money 
on either side. Not so with the defendant 
and his companions. Numbering a hun- 
dnd, armed with muskets, boarding pikes, 
and pistols, with knives concealed in their 
boot-legs, that it should not be seen how 
thoroughly they were armed, with a long 
eighteen pound swivel gun, commanding 



great niitions of Europe have recently provided any point of the horizon, with four heavy 
by treaty for its abolition, and our govern- j wai-^t guns, two eighteen pounders and tw-> 
nient, though the last to do so, has, I believe, ; twelve pounders, they went to sea, not to 
acceded to the proposition. I will not speak meet, but to skulk from armed vessels, 
of the recent history of the question in this I and rob unarmed men such ns the witnesses 
country, as it is somewhat involved in parti- { w have produced. Not with armed men 
san politics, and to discuss it might create and vessels of war was the conflict they 
the impression that there was some justifica- j sought, but with the Enchantress. John 



tion f I r the one act of discourtesy in the 
course of this trial — the allusion of the gen- 
tleman to the party relations of my colleagues 
a id myself. In the highest court of the land, 
gentlemen, we are considering questicins re- 
lating to the highest issue tliat can be con- 
tided to man, and no assault shall make me 



Welsh, and sucii other unarmed, hut richly 
laden merchantmen as they might fall in with. 
Was this the conduct of soldiers, or fe'ons? 

But again, say bis counsel, he is not a thief 
and a pirate, but a prisoner of war, and in sup- 
port of the proposition, ask, " Did he not give 
his prisoners a siitficiericy of food — and did 



pollute the cause with an alluj'ion to a party not the officers of the Albatross confine him 
question or a party relation. I will even ' more closely, and treat him more harshly than 
waive the discussion of wiiat the gentlemen i he had treated his prisoners?" 
appear to deem a point of much importance, | Yes, he did give his prisoners a fair, daily 
lest it might be suspected that my sugjrestions j allow ince of the water and stores he had 
were intended to vindicate or condemn anj' : stolen from them, and he did not put them in 
party organization with which I or others may irons, as the United States officers put him, 



Lave been connected. 

Why not, asked the senior counsel, ex- 
change William Smith as a prisoner of war, 
and send him on his parole, to his sorrowing 
wife? Because he did not go to his wife when 
he might have done so without the taint 
of felony, and because the man in our 
whole army, most wanting in a soldier's 



when they arrested him in the act of piracy ; 
but how this proves him to be a prisoner of 
war, and not a pirate, or why upon this 
showing, our Government should recognize the 
Southern confederacy, it is somewhat difficult 
to tell. 

Is not Smith's case, you are also asked, 
precisely analogous to tiiat of Paul Jones, and 



attributes, would be overwhelmed with shame, are you prepared to say that he should have 



at the thought that he had obtained his 
freedom on such terms. '' Why not," the 
changes ring, " exchange this man and 
his companions, as prisoners of war, as 
a certain Commodore and others have been 
exchanged?" In the first place, let me 
say, that no Commodore has been exchanged ; 
and in the next, that our Government has 
not sanctioned any exchange of prisoners ; 
and further, that while I admit that the 
manner of signing, and the letters of the 
Lastily drawn terms of capitulation at Forts 
Clark and Hatteras. imply the existence of 
a government known as that of the Con- 
federated American States, I challenge the 
proof, even through the " Rebellion Record" 
of any such act on the part of our government, 
or tliat it has by any expression or implica- 
tion, recognized the existence of a foreign 
government wiiliin the limits of the United 
States. 

But, if the Government were prepared to 
exchange prisoners of war, the defendant 
would not come within the category. Treat 
him like a soldier taken on the battle-field ! 
The men who shot the eloquent and gallant 
Baker a few days ago, were in the open field 
to contend with armed men. It was soldier 



been hung as a pirate ? Let me answer that 
question so adroitly put, by asking another. 
Is any one of the counsel for the defence pre- 
pared as a lawyer to say, that if before the 
recognition of our independence, Paul Jones 
had been taken on board a privateer, by a 
British cruiser, the English law would not 
have condemned him as a pirate? The truth 
is, gentlemen, that Paul Jones, and all the 
American privateers of that day knew very 
well, that if they were taken, they would go 
into England and be tried for the crime of 
piracy. They took that ri.sk in the cause of 
their country, and the defendant has assumed 
it in that of the great rebellion, and it is not 
for you to shield him from the legal conse- 
quences of his deliberate act. 

This wicked and groundless rebellion has 
been compared to the American Revolution, 
and you are appealed to by the memories of 
our fathers, to pronounce piracy an act of pa- 
triotism, and acquit the defendant. We 
were in the minority at the time of the Revo- 
lution, said my learned brother Harrison. 
He was mistaken. He has not read history 
correctly. We were not in the minority ; we 
were the people of the country. Outside of 
South Carolina, the royalists and tories were 



92 



the exceptional few. There is no analogy 
between this infamous rebellion, and the Ame- 
rican Revolution. Had the American people 
a majority in the British House of Lords at 
that time? Had they a practical workinfr 
majority in the House of Commons ? Was the 
highest court of the realm so much in their 
favor that it had recently given a strained de- 
cision securing them the enjoyment of what 
they regarded as their most sacred right ? Or 
had the king appeared among them, and pub- 
licly sworn to fairly administer the laws and 
protect us in all our rights and privileges? 
No ! no ! there is no analogy. We, says he, 
were weaker in every respect, than are the 
confederates. In men, money, the munitions, 
and paraphernalia of war, we were weaker, 
but in the merits of our cause, we were more 
than thrice armed. In au effort to main- 
tain justice and right, to extend and per- 
petuate popular institutions, and to construct 
a Republic whose ultimate limits should be 
circumscribed only by those of a continent, 
and the enduring corner-stone of which, 
should be human equality, we had a cause 
that invoked the sympathy, prayers and aid 
of all good men, and the superintending care 
of the Eternal Father of men, and fountain of 
blessing. But who sympathizes with the am- 
bitious and unprinci(>le<J demagogues who are 
drenching the country in blood, in an effort to 
turn back the hands on the dial of time, and 
obliterate the precepts and example of their 
fathers. 

But it is said, that this is no mere insurrec 
tion or rebellion ; that it has assumed the 
ampler proportions and characteristics of a 
civil war; that the Soutliern Confederacy is 
an existing government, fosteii;ig the arts and 
sciences, administering law, and having its own 
system of revenue and finance; that foreign 
nations long since recognized it as a belligerent 
power, and tliat its people have been treated 
as belligerents in our own civil courts; and 
can it not, you are asked, grant letters ot 
marque? No, gentlemen, if all this be true — 
and for argument's sake 1 admit it all — it 
gives no validity to the letter of Mr. Divis. 
Letters of marque can only be granted by 
a member of the family of nations — hy a 
State whose national existence is recognized, 
and which lias, or may have, diplomatic re- 
lations. The commerce of the world may not 
be interfered with hy every insurgent chief 
or rebel leader. Nor does tlie adoption of a 
constitution by the rebels or insurgents, how- 
ever wisely and formally it may be done, 
invest them with the power. "A revolution," 
says his Honor, Judge Cadwalader, in the 
opinion to which I have already referred, 
'• must have been consummated as an act of 
power, before the question of its rightful- 
ness can be judicially considered " 

You, gentlemen of the jury, are judicially 
considering the question of piracy, and the 
act of the leaders of a rebellion is set up as 
a defence. But it has not been and cannot 
be shown that a revolutiou has been consum- 



mated, and the defence fails. The revolution 
must have been established ; the new govern- 
ment must have maintained itself, been recog- 
nized as a member of the family of nations 
by the original government or those of neutral 
powers. 

Judge C.\nwAL.\i>ER. Mr/ Kelley, sup- 
pose you were to put in the word "peacea- 
bly." Are not all the authorities which 
establish the de fjcto right of a revolutionary 
government, founded upon its having been for 
a measurable time peaceably established ? Is 
there any such doctrine, as that there can be 
an establishment of a revolutionary govern- 
ment which is organized under a contest, 
while the contest continues ? 

Juiige Grikr. Docs it cease to be rebellion 
in that case? " 

Judge CAnwALAj>ER. The subjpct is a 
verj' interesting one, and very delicate in its 
application, unless upon that definition ; but 
so far as 1 can recollect, if the doctrine be 
defined in that way, it is perhaps a question 
on which there wiil be found little or no con- 
flict of authority. 

Mr. Kellet. I think I shouli] have come 
to meet the suggestion which your Honor has 
thrown out. " Neither," gentlemen of the 
jury, says the same opinion, " the power nor 
the right of revolt against a government, can 
be asserted in its own courts." 

Judge CAmvALADER. I did not mean to 
interrupt you, Mr. Kelley, but to call your 
attention to the point, that it might be applied 
to the subject under consideration, because 
subordinates of all ranks have been protected 
greatly on the principle of a de fa"to estab- 
lishment of that which originated in wrong; 
but the question I suggested was. whether that 
had not always been under circumstances 
showing that it had, for a time at least, been 
peaceably established — not merely that the 
former jjovernment had been subverted, but 
that the new one had been peaceably estab- 
lished ; and not where there was a continu- 
ing contest. 

Mr. Kelley. His Honor has probably, 
gentlemen of the jury, made you undeistand, 
as be has me, the point he makes, which lay 
in my mind to be exhibited to you at some 
stage of my argument 

Mr. Wharton. Allow me to ask how the 
doctrine would apply to the present kingdom 
of Italy. Does your Honor mean peaceably 
established, or peaceably maintained? 

Judge Cadwalader. I will endeavor to 
state it more clearly to the jury if 1 shall have 
occasion to do so. I mean to say that a revo- 
lutionary government must have been peace, 
ably established, before the question could 
arise for the purpose now before us. Whether 
it must be afterwards pe,;ce.ibly maintained, 
[ have not said ; but it must first be said to 
have had a peaceable existence. For ex- 
ample, take the case of the revolutionary 
government of England between ltJ48 and 
1660. There was a time when there was no 
other governmeuti there, and no other govera- 



98 



ment hostile to it. Upon that state of things 
arose the question which has been so much 
dehnted. 

iMr. AVhabton. Our govirnment went 
thriiugh a baptism of wnr ; and the present 
l<ii:gdoni of Italy has done the same, and yet 
perhaps it is not peaceably established, for 
there may be an attempt to overcome it by 
arms. 1 desired merely to km w whether 
your Honor meant a peaceable establishment 
or a peaceable origin. 

Judge Cadwalauer. Though the origin 
was hostile, there may have been a peaceable 
establishment, as occurred in the English 
revolution. However, I did not mean to in- 
terrupt the argument ; I merely meant to 
simplify the question. 

Mr. Kellet. The point that has brought 
on this discussion — and I thank his Honor 
for the interruption — is, that the counsel 
for the prisoner, maintain that the Southern 
Confederacy exists de facto, and that her 
net is to be accepted as his defence : and 
I maintain, (and there lie.i the whole ditfer- 
ence between us,) that the United States gov- 
ernment exists, and that the two are incom- 
patible, by force of that law which prevents 
the possilile occupation of the same space by 
two objects at the same titne. The United 
States government extends over the territory 
of the thirty-four States. If it does not, it 
has ceased to exist. If it does exist, their 
proposition is at an end, and no ailequate 
defence to the indictment has been presented. 

The government that issues letters of 
marque must have had a peaceable existence. 
It must have conquered the original govern- 
ment, or purchased its independence ; or so 
far have exhausted the pt wer of the original 
government that, for a per'o 1 of greater or 
less duration, it should have suspended its 
belligerent efforts to bring the rebels into 
subjection. Tlie point may be illustrated by 
the case of Texas. Mexico and the United 
States. We recognized the independence of 
Texas before Mexico, but not until Mexico 
seemed to have abandoned military ett'oi t to 
repossess herself of the province. Tiie war 
having ceased in fact, our government recog- 
nizt-d the rightfulness of a revolution that had 
resulted in the peaceful existfrice of a young 
State, and with a friendly )e;ognition wel- 
comed Texas into the family of natiuns 
AVhile their struggle continued, a Texan letter 
of mar(|U3 would not have been a sufficient 
defence to the charge of piracy in a Mexican 
court; but after lier recognition, and before 
her admission into tlie .American Union, it 
would, I apprehend, have l)een so recognized. 
Hut wliat n>iti(m has recognized the Southern 
Confederacy? None; atid is not the proof 
in tills case, that it is forcing all its male in- 
habitants between sixteen and sixty years of 
age to do naval or military duty in a war by 
wliich its leaders hope to estatdish a n ition 
and secure reci gnition ? Mr. Davis's letter 
can, 1 repeat, have no val dily in this Court, 
liut, gentlemen, if I have tailed to make 



this point clear to you, lean leave it with the 
assurance that their Honors will ; and in a 
case of this magnitude, a jury should take 
the law from the Court, and not from con- 
tending counsel. We who represent the gov- 
ernment, are not, as has been intimated, 
contending for a professional victory. What 
we desire is an honest and intelligent applica- 
tion of the law to the facts of the case, a 
conscientious and legal verdict. 

Much allowance must be made for the ear- 
nestness of centlemen charged with the de- 
fence of a prisoner whose life has been im- 
perilled by his guilty conduct. But there are 
limits beyond which enthusiasm should not 
carry a man even in the jierformance of such 
a duty. The State of Georgia nor the South- 
ern C(mfederacy was the Caisar to whom the 
prisoner, an American citizen, was bound to 
render the things that are Cve ar's. Nor was 
tlie other assertion of my Iriend Mr. Whar- 
ton, that after the President had issued his 
Proclamation c illing for seventy-five thousand 
troops to make war upon them, the people of 
the South thought it but right to resist force 
by force and began to prepare for war, his- 
torically correct. Nearer to the truth was he 
in fact, though I fear not much in spirit or 
purpose, when he asked you, and the Court and 
the audience, the question, who shall say that; 
we are engaged in a war which Congress has 
declared ? No man shall say so, not even the 
counsel, nor his eloquent colleagues. It was 
not the Congress of the United States that 
directed the walls of Fort Sumter to be bat- 
tered down, and a foreign flag hoisted over 
their blackened ruins. It was not the voice 
of Congress that on the ]Sth of April last 
proclaimed in th; distant city of .Montgom- 
ery, that the same foreign flag before the 
first day of the next month would flout the 
insulteii heavens trom the dome of our coun- 
try's capitol. Nor was it (Congress that du- 
ring the entire autumn, winter, and early 
sfiring, busied itself in circulating hate-engen- 
dering lies, that throughout a large section 
of the country suspended all peaceful avoca- 
tions, drained workshop and counting-room, 
and having from excited aud inflamed masses 
of men, recruited, enlisted, and organized 
regiments, waged th s unholy war. What 
man shall be found so base as to charge these 
crimes and this fratricidal strife upon Con- 
gress or any deiiartment of the government 
of the United States? When the peace of the 
country had been violated ; its fl ig dis- 
honored ; a little band of its soldiers half- 
famished and sick at heart from hope de- 
ferred, driven from one of its forts by over- 
whelming numliei's, acting without regard to 
the amenities of civilized war, — its arsenals, 
hospitals, mints, aud other prop rty des- 
poiled, and the very capitol of the country 
threatened, the President who had sworn to 
" preserve, protect and defend the Constitu- 
tion of the United States," summoned the 
people to arm and aid him in the periormance 
of this great duty. Nor, let me in passiug 



94 



remark, was it Congress that attempted by 
tlie destruction of bridges on the great lines 
of transit, to prevent the seizure of the Cafi- 
tol and the overthrow of the Government. 
Wliat the President did Congress has ap- 
proved, and more than two hundred thousand 
American citizens are now voluntarily under 
arms to suppress the unjustifiable and in- 
iquitous rebellion in aid of which the war 
has begun, and in defetice of the Government 
and institutions it was intended to overthrow 
The prisoner threw himself into this war in 
aid of those who so wantonly waged it, not as 
a belligerent, but as a robber and a pirate: 
he chose the felon's part, and went to rub his 
unarmed countrymen upon the high seas. The 
captures he and his companions made, were 
not intended to enrich the treasury of the pre- 
tended government he professed to serve. His 
object was to make gain, and put money in 
his purse. But, says his senior counsel, it 
will be dangerous to convict him, for if you 
do, he mny be hanged Well, what then ? 
Not, it is true, an admonition V< look out for 
yourselves, your wives and children ; but the 
declaration that lus death will be terribly 
avenged, that for every man hanged here, 
there will be ten men hung at the South — tiiat 
if this prisoner he convicted and executed, 
there will go up to Heaven from CastlePinckney 
a wail that will be heard even on the banks of 
the Delaware. There has, gentlemen, been 
much to admire in the course of this trial, and 
much to surprise him who regards loyalty as a 
virtue, but the coolness with which these sug- 
gestions were submitted to you exceeds all 
else. One would rather doubt the evidence 
of his own senses, than believe that he had 
heard an American jury gravely informed by 
distinguished counsel, that if they had the 
temerity to render a conscientious verdict 
and tiie law should take its course, their fel- 
low citizens would be hung by the score, and 
the heart of the n^ition be wrung by the wail 
of its suffering children. Vou have not been 
sworn, gentlemen, to exercise a ho ind discre 
tion in tiie premises : your oath requires you 
to ascertain the facts, apply the law to them 
and a true verdict find Do it — not under the 
influence of fear or malice or indignation, but 
calmly and conscientiously; and, if such an 
administration of tiie law of the Utiited States 
shall provoke many !ind barbarous murders, 
let it be so! In God's name, let u- know the 
worst. But, if you are to calculate conse- 
quences, permit me to ask, wliat word or fact 
■would carry such insj'iration to the armies of 
the South, or impart so much confidence to the 
leaders whose S;itanic ambition is now agon- 
izing the heart of the nation, as the announce- 
ment that in the city where the Constitution 
was adopted, in the Ciicuit Court, ho den in 
the shadow of Independetice Hall, the Con- 
federacy of Jeff. Davis had been judicially 
recognized, and its letter of marque, accepted 
as a defence for the crime of piracy. Better 
than a brigade, division or whole corps d'ar- 



mde, would it servp their unholy cause. AVith 
what wild shouts of enthusiasm, would they 
not receive such an assurance that the people 
of the North sympathize with them in their 
iniquities, and yearn for peace on such terms 
as they may graciously condescend to (if t. 

Again, gentlemen, if the possible conse- 
quences of your finding are to influence your 
delil)erations, let me .'■uggest that such a ver- 
dict !is in my judgment is demanded by the 
law iuxl the facts of this case, might possibly 
produce effects much less sanguinary and 
atrocious than those suggested by the pri- 
soner's counsel. May it nut be that among 
the mercurial people of the South tlin-e .are 
some who have been inflamed against the 
govir iment by the floods of calumny poured 
upon the heads of tlie men to whom the people 
hfive confided its admini.>^tration for an execu- 
tive term, who would be kindly influenced by 
the fact that one of the guiltiest of their mis- 
guided compatriots, taken in the act of a ca- 
pital crime had been tried with care and de- 
liberation, and properly ctmvicted — but not 
hurried to the gillows-trce or the lamp-post ; 
not sentenced on the spot to execution, but 
held as a po-sible subji'ct for executive clem- 
ency. Might not such a fact refute many an 
infamous lie — bring back to duty some of 
ambition's misguided victims — save the beau- 
tiful locks of some poor girl unable to conceal 
the love she still bears the dear old flag that 
waved from the stjiff on the village green in 
the days of her childhood ; shield from the 
soothing application of tar and sand the 
lacerated back of some unhappy man who 
cannot forget the home of his childhood, or 
the love of freedom and the Union, inspired 
by his grandsire's story so often repeated 
under the shade of the old roof tree ; or possi- 
bly diminish the number of lawless executions, 
which by their frequency and cruelty, are in- 
flicting such ineffable disgrace upon the coun- 
try, [s it not possible, I ask, that some such 
beneficent consequences as these may follow 
the conscientious and fearless discharge of 
your duty. 

While the counsel for the government do 
not wish you to forget th.at the prisoner has 
a home, a wife, a child, and an aged grar.d- 
motiier, thfv are unable to see what thi se 
facts, so important to him, have to do with 
the case. In connection with a plea for mer- 
cy, they may be potential, but geutlemeu. 
that blessed attribute does not pertain to your 
present office. It belongs to the nation, the 
majesty of whose laws has been outrage<l, 
and can be legally exercised by the President 
alone, and to his consideration you may safely 
leave itas your dutj' requ res. Other men hive 
wives and children too — and the presumption 
does not seem to be overstrained that even poor 
Jacob Garrick, who having been a mati when on 
his native Danish soil, and when in the harbor 
of Boston, and again, when under his responsi- 
bility to the great Searcher of Hearts, he was 
permitted from yonder witness stand, to tes- 



95 



tifj' tc the tacts (vitbin his knowledge touch- 
ing tlic plamtilt 's guilt, though he was np- 
pruiseu i>s Dieiooandise by the pirates who 
seized him, ui».y also in the course of Nature 
have had a gidiidmother — certain it is that 
he has known a sister's love, for he spoke to 
you (if his brother-in-law. 

Yes, I'age, and Fitit'M, and Ackland, the 
officers and men of the Enchantress, Joiin 
Welsh and S. J. Waring had wives and chil- 
dren to watch the winds during their absence 
upon the great deep and pray for tiieir safe 
return. The rock-bound coast of our country 
is dotted by the homes of mariners whose har- 
dihood, enterprise and industry bind the na- 
tiiins to peace by the gulden bonds of profita- 
ble commercial intercourse, and in their behalf 
we ask that the law as it has existed for ages, 
may now be firmly administered. For, if it 
should be announced that a I'ennsylvaniji jury 
under the charge of the Judges if the Circuit 
Court of the United !Sta es, have ht*ld that the 
prisoner and his lawless comrades were en- 
gaged in honorable warfare, and as his coun- 
sel will have it, deserve the thanks of their 
country for their patriotic performance of 
duty, you will have armed vessels fitting out 
fi'om every port in the country in which des- 
perate and unprincipled men can be lound to 
prey upon your commerce, and the hearts of 
the families of your mariners will be torn by 
agony such as is but too familiar to the wives 
of our soldiers. What wife of a seaman, mo- 
ther of a sailor boy, or daughter of a weather- 
beaten mate or captain will sleep soundly, 
after she shall have heard that under tiie so- 
lemnity of your oaths you have bid VMIliam 
Smith, the prisoner, God speed, and assured 
him that in your judgment the officers and 
crew of the JefJ'. Davis deserve well at the 
hands of your country. 

Uue point more, gentlemen, and the duty 
of counsel will be enUed. 

The prisoner's counsel have asked you to 
judge his case without prejudice In that re- 
quest we unite most cordially. You entered 
the box strangers to him, with no opinion as 
to his guilt or innocence, and, if my collea- 
gues or 1 have uttered one word outside of the 
facts or the law of this case by wliich preju- 
dice might be excited against him, I pray ^ou 
to banish it from your memory, give full con- 
sideration to any fact from which an infer 
ence favorable to him can be drawn, and 
take the law from the Court as it shall 
give it to you. Let prejudice have no iuflu 
ence in deciding a case so grave in its results, 
so grand in its relations. 13ut, gentlemen, 
1 do not as my learned triends seem, to recog- 
nise love of country — devotion to tiie beauti- 
ful flag that symbolizes its freedom, power 
and majesty — pride in the glorious memories 
that fill the pages of its history, or veneration 
for the brave men wlio won its freedom, or 
the wise men who fashioned its institutions as 
prejudice. 1 cannot, as they seem, to recog- 
nize as prejudice the hopes with which the 



heart thrills as we contemplate the ever ex- 
panding glories of our country — 'he ever in- 
creasing multitude of free people who shall 
inhabit its broad prairies, its teeming valleys, 
its rugged mountain sides, and traverse its 
majestic lakes and rivers — its ever increasing 
progress in arts, sciencp, letters, morals and 
religion — the benefioent influMice it is to ex- 
ert in the cause of freedom and social pro- 
gress among the nations, and the undying 
perpetuity secured to it by the inspired sages 
who fashioned the Constitution now so madly 
assailed. No, these emotions are not prej i- 
dice They are essential e'ements of patriot- 
ism known to you and all true men, and I 
ask you to carry them with you to the jury 
room, and allow them full consideration in 
y lur deliberations. 

Judge Grier intimated to the Jury that 
he would charge them now, or to-morrow 
morning, as they might prefer. 

The Jurors preferring to wait till the 
morning, the Court adjourned. 

Friday, October 2.5, 1861. 

Judge Grier proceeded to charge the 
Jury as follows : 

Gentlemen of the Jury, you have listened 
with patience for three days to the evi- 
dence and argument in this case ; and it 
now becomes your duty, after a few re- 
marks from the Court, to make up your 
verdict. It is unnecessary, to gentlemen 
of your understanding, to repeat the com- 
mon places about your duty of giving a fair 
and impartial trial, without prejudice, &c. 
You are all aware of your duty. 

The defendant, William Smith, whom 
you have in charge, is indicted for the 
crime of piracy. It is proper that the 
Court should give you a definition of it, so 
that you may apply the testimony to the 
case. It is briefly defined "as robbery on 
the high sea." (5 Wheaton, 1.53.) As the 
sea belongs to no nation, but to all nations, 
and as the ott'eiice is usually committed 
without the particular municipal juris- 
diction of any nation, it is an offence 
against the law of nations, and may be 
punished by any nation, whether committed 
by natives or foreigners. Pirates or rob- 
bers on the ocean are called hostes humani 
generis. But every nation has the offence 
and the punishment defined by its own 
municipal laws. 

Of the several acts of Congress on this 
subject, we need only refer to the Third Sec- 
tion of the Act of the 15th of May, 1820, 
as the one which defines the offence as 
charged in the indictment. It is as follows : 

" If any person shall, upon the high seas, 
or in any open roadstead, or in any haven, 
basin, or bay, or in any river where the 
sea ebbs and flows, commit the crime of 



96 



robbery, in or upon any ship or vessel, or 
upon any of the ship's company of any ship 
or vessel, or the lading thereof, such per- 
son shall be adjudged to be a pirate, and 
being thereof convicted before the Circuit 
Court of the United States for the District 
into which he shall be brought, or in which 
he shall be found, shall suffer death." 

First. The offence is robbery — a crime 
defined by the common law as " the felo- 
nious and violent taking of any money or 
goods from the person of another, putting 
him in fear." 

The epithet "felonious" has reference to 
the intention, which must be " anmo /«- 
randi," for the purpose of stealing or ap- 
propriating the thing taken. 

Second. There need not be absolute 
personal violence used, if there be threats 
and the person robbed, submits peaceably, 
through fear of violence. When the rob- 
bery is committed by several acting to- 
gether, all are equally guilty. Nor need 
the money or goods taken be on the per- 
son, provided they be in the possession of 
the owner, such as household goods or, cat- 
tle in the field, or, as in this case, " upon a 
vessel and its lading," as defined in the 
act. 

Third. The robbery must be committed 
on the " high seas," <kc. 

If you believe the testimony, (which I 
need not repeat to you,) the charge as thus 
defined, appears to be fully established. In 
fact, if the case rested here, the learned 
counsel of the defendant seem to admit that 
they could not resist a conviction. 

But it is contended that, though pro- 
perty may be taken " by violence on the 
high seas," yet if it be done by authority of 
a State in prosecution of a war against 
another State, the persons acting under 
such authority are not guilty of piracy, and 
cannot be punished as such. This is no 
doubt true, for piracy has been defined 
'• as depredation on or near the sea with- 
out authority from any Prince or State." 
(6 Bacon's Abridgment, 163.) 

Those having such authority are treated 
as enemies, or as having the privileges of 
enemies in open war. Thus, Turks and 
Algerines, though acting as freebooters on 
the ocean, could not according to Sir Leo- 
line Jenkins, be treated as pirates, be- 
cause they acted under a commission from 
States with whom the Government had 
treaties, and had acknowledged to be 
States in the great family of nations. But 
it does not follow that every band of con- 
spirators who may combine together for 
the purpose of rebellion or revolution, or 
overturning the government or nation of 
which they were citizens or subjects, be- 
come ipso facto, a separate and inde- 



pendent member of the great family of 
sovereign States. 

A successful rebellion may be termed a 
revolution : but until it has become such, 
it has no claim to be recognized as a mem- 
ber of the family, or exercise the rights or 
enjoy the privileges consequent on sove- 
reignity. " When a civil war rages in a 
foreign nation, or in our own, and one part 
separates from the old established govern- 
ment, and erects itself into a distinct 
government, the Courts of the Uinted 
States must view such newly constituted 
government as it is viewed by the legisla- 
tive and executive departments of the 
government of the United States." Every 
government is bound, by the law of self- 
preservation, to suppress insurrections ; and 
tlie fact that the number and power of the 
insurgents may be so great as to carry on 
a civil war against their legitimate 
sovereign, will not entitle them to be con- 
sidered a State. The fact that a civil war 
exists for the purpose of suppressing a re- 
bellion, is conclusive evidence that the 
Government of the United States, refuses 
to acknowledge their right to be considered 
as such. Consequently, this (jourt sitting 
here to execute the laws of the United 
States, can view those in retiellion against 
them in no other light than traitors to 
their country, and those who assume by 
their authority a right to plunder the pro- 
perty of our citizens on the high seas, as 
pirates and robbers. 

1 do not think it necessary on the pre- 
sent occasion, to follow the wide range of 
questions which have been drawn into the 
discussion of this case by counsel, or to re- 
fute the sophisms and platitudes put forth 
by speculating theorists or political dema- 
gogues on the constitutional right of any 
portion of this one nation, or of any of the 
States composing it, to destroy the Con- 
stitution and Union because they are dis- 
pleased at the result of an election. The 
right to secede is not to be found in the 
Constitution, either in its letter or its 
spirit. If so, it would be/e^o f/e se. It is 
a Government and Constitution ordained 
by the people of the whole United States 
for ail time — not a mere tempurary compact 
of independent and sovereign confederates. 

Judge the tree by its fruits, and we see 
the results of this miserable political 
heresy in the present situation of our 
country, (we need not go to Mexico.) with 
more tlian half a million of men in arms 
drenching our fields in blood. 

This fratricidal war is nut only the fruit 
of this doctrine, but the demonstration of 
its ini(iuity. What are our mighty armies 
arrayed for, but to compel, by force of 
arms, its acknowledgment, by those whom 



97 



reason cannot convince of its absurdity. 
Why prate about the right of an oppressed 
people to change their government by a 
revolution ? Can that justify the treason 
and rebellion of those who were never op- 
pressed, but who seek to substitute a mili- 
tary tyranny for the purpose of conquest 
and. oppression ? 

Of the plea of duress, I need only say 
that I am sorry iudeed that there is 
not some evidence to support it; for I 
should grieve to see these poor fellows, 
who have been led astray by wicked dema- 
gogues, become the scape 'goats for the 
greater iniquity of others. But the dis- 
pensation of mercy is not with us. Your 
duty is to render a true verdict, and that of 
the Court to pronounce the sentence of 
the law thereon. Whether under all the 
circumstances of the case, a proper policy 
might not suspend its execution, is a ques- 
tion for the Executive to decide. 

Certain points have been presented to 
the Court on which we are requested to 
instruct the jury. My opinion of them may 
be inferred from what I have already said ; 
but I have requested my learned brother 
to notice them more particularly in his 
remarks to the jury, which he will now 
proceed to do. 

Judge Cadwalader. Gentlemen of the 
Jury, independently of the request of the 
presiding Judge, this case, from its general 
importance and specific novelty, might re- 
quire that the views of each member ol 
the Court on the questions involved should 
be stated. 

One of the witnesses examined on the 
part of the defence has deposed that in 
June last, the defendant shipped as one ol 
the crew of an armed vessel called the Jeff'. 
Davis, fitted out as a hostile cruiser against 
the United States. The defendant's "coun- 
sel allege, and it is perhaps admitted by 
the counsel for the prosecution, that she 
was a privateer, commissioned under letters 
of marque and reprisal from the so called 
Confederate States. 'J'he defendant ap- 
pears to have resided at Savannah, Geor- 
gia, where he had followed the business of 
a branch pilot, and had been a person of 
good repute. He is entitled here to the 
benefit of this former good charact'r, jtnd 
also to that of the testimony which proves 
the kind treatment by the crew of the Jeff'. 
Davis of their prisoners, while he was on 
board and afterwards. The same witness 
has testified that the defendant was a 
boatswain in this vessel ; that he left Sav- 
annah for the purpose of joining her in the 
early part of June last ; that he joined her 
at Charleston, South Carolina, where she 
then lay, and that he went to sea in her 



on the 28th of that month. from Charles- 
ton. 

The character and strength of her arma- 
ment has been described by several wit- 
nesses ; and some occurrences prior to 
those particularly charged in the indict- 
ment have been proved in order to show 
that she was cruising for the purpose of 
capturing merchant vessels of the United 
States. (.)n the 6th of July last, according 
to the testimony, (of which you, of course, 
are the judges,) she captured the schooner 
Enchantress, a vessel owned by citizens 
of the United States, laden with a cargo 
which was also the property of citizens of 
the United States. The facts proved, in 
order to show that the Enchantress and her 
cargo were forcibly taken and forcibly de- 
tained by her captors, are doubtless fresh 
in the recollection of the jury. The defend- 
ant, as prize master, with four others, was, 
according to the testimony placed in charge 
of her. The place of capture, as one of 
the witnesses deposed, was about two 
hundred and fifty miles southeast of Nan- 
tucket South Shoal, The Enchantress, in 
charge of the prize crew, and according to 
the evidence under the command of the 
defendant, appears to have borne away to 
the southward, and after having been at 
sea till the 22d of July, to have been on 
that day recaptured off the coast of Caro- 
lina by a national armed vessel of the 
United States. This recapturing vessel 
was a steamer which took her i i tow and 
brought her into Hampton Koads. The de- 
fendant and the others of the prize crew 
were kept as prisoners on board of this war 
steamer, which, after anchoring in Hamp- 
ton Roads, near to P^ortress Monroe, went 
a short distance up the Potomac, returned, 
and again anchored in Hampton Roads; 
after which she brought the prisoners, in- 
cluding the defendant, to Philadelphia, 
where they were taken into the Marshal's 
custody. 

This, I believe, is an outline of the whole 
of the proofs. I have taken full notes of 
the evidence w.th great care, and will read 
the whole, or any parts ol it, to the jury, if 
any one of them, or any of tne counsel, re- 
quest me to do so. 

The counsel for the pros 'cution contend 
that those who participated in the capture 
of the Enchantress and her cargo, were 
guilty of piracy under the act of Congress 
of 15th of May, ld20, which enacts that 
any person committing upon the high sea 
the crime of robbery in or upon any ship 
or vessel, or upon any of the ship's com- 
pany of any ship or vessel, or the lading 
thereof, shall be adjudged a pirate. The 
off'ence thus described in this act is, in the 
several counts of the indictment, stated in 



98 



different specific or particular forms, in 
order to meet alternative aspects in which 
the case might be presented by the evi- 
dence. The indictment also contains an 
averment showing that the case is within 
the jurisdiction of the Court under the 
enactment that the trial of crimes commit- 
ted on the high seas, or in any place out 
of the jurisdiction of any particular State, 
shall be in the district where the offender 
is apprehended, or into which he may first 
be brought. 

One of the points of law on which the 
counsel for the defendant have requested 
instructions to the jury, is, that this Court 
has no jurisdiction of the case, because, 
" after his apprehension on the high seas," 
he " was first brought into another district," 
— meaning the Eastern District of Virginia, 
— " and ought to have been there tried." 
This instruction cannot be given. When 
he was taken prisoner, and was detained 
in the recapturing vessel, he was not ap- 
prehended for trial within the meaning of 
the Act of Congress. His first apprehension 
for this purpose, of which there is any evi- 
dence, was at Philadelphia, after his arri- 
val in this district. Whether he had been 
previously brought into another district, 
within the meaning of the Act, is unimport- 
ant. It has been decided that, under this 
law, a person first brought into one district 
and afterwards apprehended in another, may 
be tried in the latter district. Therefore, 
if you believe the testimony on the sub- 
ject, this Court has jurisdiction of the case. 
Upon the main question of the guilt of 
the prisoner, there is, I believe, no dispute 
that the case would be within the words 
and meaning of the Act of Congress, if 
the revolutionary proceedings whose char- 
acter and effect have been discussed, had 
not occurred, and had not resulted in a 
civil war. An established government 
may prosecute hostilities against its ene- 
mies in a civil war in like modes as against 
its foreign enemies in a national war, and 
for certain purposes, with like effects. For 
example, vessels captured in the present 
civil war may be confiscable in prize courts 
of the United States, and captured persons 
may be detained by the United Stales as 
prisoners of war. Moreover, in all wars, na- 
tional as well as intestine, innocent and 
harmless inhabitants of hostile districts, 
may, in common with authors and abettors 
of the war, become involved in its calami- 
ties. These results when produced by a 
civil war, do not alter its legal character. 
They do not convert it into a foreign or a 
national war. In a civil war — however orga- 
nized and systematic the hostilities prosecu- 
ted by an established government — its ene- 
mies, may, when captured, be liable as trai- 



tors or as pirates, to prosecution in its Courts 
of justice. I have recently had occasion to 
say, and I now wish to repeat, that during 
civil wars, in which organized hostilities are 
prosecuted on an extended scale, persons 
in arms against an established Government, 
captured by its naval or military forces, are 
often treated, not as traitors or pirates, but 
according to those humane modern usages 
which are observed as to public enemies in 
a national war. They are detained as pri- 
soners of war until exchanged or discharged 
on parole ; or, if surrendered to the civil 
authorities for trial, are, after conviction, 
respited or pardoned. Hostile feelings have 
thus been softened, and measures of retali- 
ation, endangering a revival of obsolete 
systems of barbarous warfare, have been 
prevented. But some writers on public 
law have discussed the subject, as if such 
civilized modern usages were founded in 
rules of legal right, rather than in consider- 
ations of mere policy. I therefore think 
it my duty to state that such usages, how- 
ever commendable, are not, in a civil war, 
founded in any rules of absolute legal 
right, but are measures of governmental 
policy. The question of their observance 
depends upon the decision of the legislative 
or executive departments of the Govern- 
ment, not upon the opinions of its judicial 
organs. Thus, Courts and Juries have, 
with such questions no proper concern, 
certainly none that should influence the 
finding of a verdict. The jury who find a 
defendant guilty, may, indeed, recommend 
him to mercy. But such a recommenda- 
tion, though always respectfully considered, 
is, in law, no part of the verdict itself. In 
finding the verdict, the rules of law should 
be applied with calmness and firmness, 
without admitting any qualification of them 
from extrinsic reasons. If there is any ra- 
tional doubt of the defendant's legal guilt, 
the jury should acquit him ; otherwise, he 
should be convicted. 

In the arguments of the counsel on both 
sides, the general question of the lawfulness 
of privateering, as a method of naval war- 
fare, has been debated. In a national war 
between independent States, privateering is 
at present lawful except where it has been 
abolished by treaty. In such a war a commis- 
sioned privateer is to be treated as a part 
of the belligerent naval forces of the Gov- 
ernment which has granted the commission. 
This heretofore established rule of the law 
of nations, cannot, so far as the United 
States may be concerned, be changed 
otherwise than by Act of Congress, or by 
treaty with foreign governments. No law 
of Congress to this effect has been enacted ; 
no such treaty is in force ; and, therefore, 
uciiuer the Executive nor the Judicial 



99 



organs of our Government can, at present, 
rightfully condemn the practice of priva- 
teering. 

But these remarks apply only to priva- 
teering in legitimate war, in which the 
commissioning government is that of an in- 
dependent State. The commission of a 
revolutionary government, whose existence 
is not recognized by that of the United 
States, can confer no such authority as 
will change the legal character of piracy, 
by merely giving to it the name and form of 
privateering. 

Of the propositions of law upon which 
the defendant's counsel have requested in- 
structions to the jury, only one has been as 
yet particularly answered. The others in- 
volve the question whether the hostile re- 
volutionary government may not have been 
so organized and established, in fact, if not 
of right, as to exempt a resident under 
its actual dominion from criminal respon- 
sibility for acts of submission or allegiance 
to it, though they may have included a hos- 
tile breach of his duty of allegiance to the 
United States. The question in another 
form is, whether the duty of allegiance may 
not have been so suspended there, as to re- 
lieve him of it to the extent required for 
the purpose of exemption from the guilt 
imputed in this indictment. 

'i'he law might be as the counsel have 
stated it, if either of two additional state- 
ments could be made : First, if the govern- 
ment of the United States had been super- 
seded by a local government, which, though 
it had originated in a hostile revolution, 
had, for a definite subsequent period, been 
established and maintained in peace ; or, 
secondly, if the defendant, though such a 
government had not been thus peaceably 
established and maintained, had been im- 
pressed into the hostile service of the revo- 
lutionary government, and compulsorily 
detained in such service. As to the first 
of these two points, the difficulty in the 
way of the defence is, that the Government 
of the United States has not been sub- 
verted, and that its authority in the hostile 
districts, if suspended, or at present super- 
seded, is not superseded by that of a gov- 
ernment which has at any time been peace- 
ably established, much less by one which 
has been maintained in peace. The gov- 
ernment of the States now confederated 
for purposes hostile to the Constitutional 
Union, was not organized without a cotem- 
poraneous outbreak of civil war. This 
war has been continued without interrup- 
tion. 'J'he contest has been on their part 
a war against an established government, 
to which they owe allegiance. So long as 
this government exists, and the contest is 
maintained, the peaceable establishment of 



the revolutionary government cannot be 

asserted. 

As to the other point— I mean the ques- 
tion of compulsion — the defence has not 
been sufficiently made out in law. The 
mere fact, if it were proved, that by an act 
of legislation of the revolutionary govern- 
ment, under whose power the defendant 
resided, military or naval service was re- 
quired of every such resident, under pain 
of banishment, or confiscation of property, 
would be no justification or excuse. Un- 
less actual force was exercised against him 
personally, or threats and intimidation 
placed him personally under a reasonable 
fear of death or serious bodily harm, the 
allegation of compulsion cannot be sus- 
tained. If he was, at first, impressed forci- 
bly into the hostile service, the inference 
might be that his detention in it was after- 
wards compulsory, so long as he remained 
on board the armed vessel in which he was 
a subordinate. But any such favorable in- 
ference would, even in that case, be re- 
butted by the proof that, as prizemaster, 
he afterwards remained in the hostile ser- 
vice when he was no longer a subordinate. 
The consideration of this point is, however, 
not necessary, because there is no sufficient 
proof that he did not at first engage volun- 
tarily in the hostile service. 

The propositions of law stated by the 
defendant's counsel must, for these reasons, 
be answered negatively. 



The Jury retired, and after an absence 
of three-quarters of an hour, returned and 
rendered a verdict of GUILTY. 

Mr. Harrison intimated that the defence 
would file reasons for a new trial hereafter. 

On the 28tb of October, the counsel for 
the prisoner moved for a new trial, and in 
arrest of judgment, and filed the following 
reasons therefor, to be argued hereafter : 

1. Because the Court answered in the 
negative and overruled the six several 
points of law presented on the trial of this 
cause to the learned Judges for their 
opinion and instruction thereon to the 
jury. 

2. Because the Court should have af- 
firmed, severally, the said six points of law 
presented as aforesaid, and should have 
charged that the same severally were cor- 
rect and sound in law. 

3. Because one of the learned Judges 
charged the jury " that the existence of 
the present civil war for the purpose of 
suppressing a rebellion," was conclusive 
evidence that the so-called Southern Con- 
federacy was not an existing State, acknow- 



(/^ 



100 



ledged by the United States, and conse- 
quently that the Court could view the 
defendant only as a pirate and a robber. 

4. Because one of the learned Judg-es 
charged that in order to render the doc- 
trine or points of law relied on by the de- 
fendant's counsel applicable or correct, it 
•was necessary that the so-called Southern 
Confederacy should have been, or be esta- 
blished and maintained in peace for a defi- 
nite period subsequent to the hostile revo- 
lution in which it had or filiated, which the 
said Judsre charged was nnt the case. 

5. Because the Court charged that there 
was no evidence of any duress which in law 
would exonerate th(^ defendant iVoin the 
offence laid in the indictment. 

6. Because any length of tinip longer 
than is actually consumed in enabling a 
government to exercise exclusive jurisdic- 
tion and control over the people within its 
territorial limits, is not necessary, by the 
law of nations, to constitute the same a 
government de facto, and that it matters 
not whether the establishment of such a 
government be brought about or main- 
tained by force of arms or otherwise. 

7. Because the commission under which 
the defendant acted, exonerated him from 
the crime of piracy with which he stood 
charged. 

8. Because the defendant was not first 
brought into this District, but, on the con- 
trary, into the Eastern District of Virginia. 

9. Because the defendant was not first 



apprehended in the Eastern District of 
Pennsylvania. 

10. Because, if the defendant, in doing 
the act wherewith he is charged, acted in 
good faith, under a commission which he 
supposed to be valid, he ought to have been 
acquitted. 

11. Because the verdict is against tlie 
law. 

12. Because the verdict is against the 
evidence. 

In arrest of judgment: Because the in- 
dictmt^nt avers that the defendant was first 
brought into this District, and was appre- 
hended here. 

On the 28th of October, Thomas Quin- 
LKY, Edward RocuKORD, and Daniei, Mi'i,- 
i.iNZs, of the crew of the Jeff Davis, were 
arraigned on the charge of Piracy, and 
pleaded "Not Guilty." A Jury was eni- 
pannelied, and the trial continued till 6 
o'clock the next day, when thev were foQnd 
"GUILTY." 

On the 29th of October, the case of 
Eben Lane, the only remaining prisoner of 
the crew of the Jeff Davis, was submitted 
to the Jury without any evidence on the 
part of the government, and he was found 
" Not Guilty." It was alleged that Lane 
who had charge of steering the Knchant- 
ress, as one of the prize crew, steered 
south in daytime and north by night, when 
he was not observed, thereby keeping her 
longer on the ocean., and conducing to her 
capture. 



